C.H. vs. Aviva Insurance Canada, 2019 ONLAT 18-002710/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:
C.H.
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Avvy Go
Appearances:
For the Appellant:
Ivy So, Paralegal
For the Respondent:
Maggie Morgan, Counsel
Heard: In Writing
Hearing: December 10, 2018
OVERVIEW
1The applicant, C.H., was injured in a motor vehicle accident on January 19, 2017. The applicant experienced increasing pain that evening and on the following day sought medical attention at a walk-in clinic as her family doctor was unavailable at the time.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent paid for some medical and rehabilitation benefits and eventually declined to fund further treatment. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
(a) Has the applicant sustained a minor injury as defined under the Schedule and is therefore subject to the $3,500 funding limit on treatment?
(b) Is the applicant entitled to payment for a cost of examination in the amount of $2,200.00 for a psychological assessment proposed by Tingling Counselling in a treatment plan (OCF-18) submitted on March 20, 2017, denied by the respondent on April 24, 2017?
(c) Is the applicant entitled to receive a medical benefit in the amount of $2,900.00 for psychological services, recommended by Tingling Counselling in a treatment plan (OCF-18) submitted on May 17, 20171, denied by the respondent on June 19, 2017?
(d) Is the applicant entitled to receive interest on the overdue amounts?
RESULT
4For the reasons set out below, I find that the applicant is not subject to the $3,500 funding limit under the Minor Injury Guidelines (MIG) and is entitled to portion of the benefits claimed plus the interest incurred on the overdue amounts.
ANALYSIS
Issue 1: Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
Definition of MIG and burden of proof
5I find that the applicant suffered a psychological impairment as a result of the accident which prevents her from achieving maximum medical recovery within the MIG.
6The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3, and collectively are referred to as “soft tissue injuries” in this decision. S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500. The definition of MIG does not include any psychological or psycho-emotional impairment.
7The applicant has the burden of proving that her injuries fall outside of the MIG and are not subject to the $3,500 treatment limit in s. 18 of the Schedule.
8In this case, the applicant claims that she should be removed from the MIG because she has suffered a psychological impairment as a result of the accident. I will therefore focus my analysis on this issue alone.
Analysis of MIG
9The applicant submitted that after the accident, she suffered from a number of emotional and psychological challenges including disturbed sleep, nightmares, driving anxiety, concentration difficulties, memory issues, irritability, difficulty coping with pain and low energy, among others. Based on the evidence presented, I accept the applicant’s submission.
10The applicant was seen by Dr. Lorden Tingling, a psychologist with a social work background, for her emotional and mental health issues. Dr. Tingling met the applicant on several occasions: March 6, 2017, March 17, 2017, and April 19, 2017 for the purpose of preparing a psychological assessment report. In the report dated May 16, 2017, Dr. Tingling diagnosed the applicant with the following:
i. Somatic Symptoms Disorder, with predominant pain (Moderate);
ii. Adjustment Disorder with Mixed Anxiety and Depressed Mood;
iii. Specific Phobia, Situational (In-Vehicular Type)
11Dr. Tingling’s diagnosis was based in part on the applicant’s self-report. But it was also based on Dr. Tingling’s clinical observation of the applicant’s presentation, psychometric test results and a semi-structured interview. For instance, the psychometric test conducted by Dr. Tingling showed the applicant had a social phobia associated with anxiety in social situations, worry or anxiety about what others may think. The test also indicated the applicant’s belief about the severity of her pain could interfere with pain management and functionality. Dr. Tingling noted that the applicant was overwhelmed by the effects of the accident and had difficulty coping with the severity of her injuries and the effect her injuries were having on her enjoyment of her life and her ability to work without pain and restrictions.
12The respondent relied on a s.44 psychological insurer examination (IE) conducted 18 months after the accident, to assess the OCF-18 of Dr. Tingling. The s.44 IE prepared by Dr. Rod Day, also a psychologist, on July 20, 2018, indicated that the applicant showed signs of positive emotion, and did not display any emotional distress. Dr. Day noted that the applicant denied any changes in the quality of her relationships with her children and grandchildren; denied that depression was a problem for her; was uncertain whether she had lost interest in previously enjoyed activities; denied sleep problems; and denied issues with her energy and concentration. Dr. Day concluded that his assessment did not indicate the presence of any diagnosable psychological condition “at this time”. Similarly, his assessment did not indicate the presence of psychological condition or impairment related to the accident that requires psychological intervention “at this time”.
13There are clearly two conflicting reports with very different results. But as the applicant rightly pointed out, while Dr. Tingling’s report was completed three to four months post-accident, Dr. Day’s assessment was done 18 months post-accident. The two assessments were completed at two very different time frames. In addition, Dr. Day did not address whether the applicant suffered from any psychological condition or impairment at any time prior to his assessment and limited his opinion only to the time of his assessment of the applicant. I therefore prefer the report of Dr. Tingling to that of Dr. Day.
14The respondent further submitted that a review of the medical records of the applicant’s family physician post-accident, note no psychological complaints or treatment for same. In reply, the applicant referred to the Disability Certificate completed by Dr. Pivtoran, dated March 9, 2017, documenting the applicant as having sustained “symptoms and signs involving emotional state” and was “experiencing difficulties relating to stress, nervousness, anxiety, sleep disturbance and driving anxiety”, and as such recommended a psychologist consultation.
15I agree with the applicant that all relevant medical documentation should be taken into consideration as a whole. While the applicant may not have mentioned her emotional and psychological issues to her family physician (who was away at the time of the accident), she did mention it to Dr. Tingling. I find that the medical documentation and the applicant’s own evidence does demonstrate that that the applicant has sustained a psychological impairment in the months after the accident including but not limited to adjustment disorder, depressed mood, and specific phobia as a result of the accident.
16Based on the evidence, I therefore find that the applicant has suffered a psychological impairment as a result of the accident and as such should not be subject to the $3,500 limit on treatment within the MIG.
Issue 2: Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a psychological assessment proposed by Tingling Counselling in a treatment plan (OCF-18) submitted on March 20, 2017, denied by the respondent on April 24, 2017?
17The applicant is seeking payment of the cost of examination by Dr. Tingling. I find the applicant is entitled to part of the OCF-18 for the psychological assessment.
18Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.
19The respondent submitted that the applicant’s claim for the assessment should be denied because two of the three dates of the assessment were prior to the submission of the OCF-18. The respondent also relied on the IE report by Dr. Day who concluded that the applicant did not meet the full diagnostic criteria for any DSM 5 psychological disorder related to the accident and that a psychological assessment was not reasonable and necessary.
20But as noted above, Dr. Day’s report was prepared 18 months after the accident and as such, I have given it less weight in determining whether the OCF-18 submitted on March 20, 2017 was reasonable and necessary.
21Citing a Tribunal decision2, the applicant submitted that “the applicant only needs to prove on a balance of probabilities that it is reasonable and necessary that she explore the possibility that she suffers from a psychological impairment.”
22The applicant submitted that she has proven on a balanced of probabilities that it is reasonable and necessary that she explore the possibility that she suffered from a psychological impairment and is entitled to funding from the respondent for a psychological assessment. I agree. The evidence before me suggests that the applicant was experiencing a number of psychological issues at the time when she was seen by Dr. Tingling. The applicant’s self-reported conditions, as noted above, indicate she was having significant difficulties coping with the pain and aftermath of the accident. Further, Dr. Tingling’s diagnosis confirmed that the applicant was, in the months after the accident, suffering from a number of psychological issues.
23Regarding the respondent’s argument that the assessment is not payable as it was incurred prior to the submission of the OCF-18, the applicant explained that Dr. Tingling needed to complete a pre-screening in order to complete the OCF-18. The applicant maintained that it is not uncommon for the assessor to meet with the applicant twice before he/she can submit the OCF-18.
24While the respondent did not cite any case law or statute in support of its argument, I note that s.38(2) of the Schedule provides that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan. There are exceptions to this requirement, but none of which are applicable to this case.
25In reply, the applicant pointed out that the OCF-18 dated March 17, 2017, was submitted to the respondent on March 20, 2017. But the respondent did not deny it until April 24, 2017, more than 20 business days after it received it. The applicant contends that s.38(11)(2) of the Schedule, provides that the insurer “shall pay for all goods, services, assessments and examinations described in the OCF-18 that relate to the period starting on the 11th business day the insurer received the application and ending on the day the insurer gives notice described in subsection (8)”. The applicant submitted since the respondent denied the plan after 11 business days as prescribed by s.38(11)(2), the respondent is thus required to fund the assessment. I agree.
26I have reviewed the Notice of Examination by the insurer dated April 24, 2017, which confirmed the denial of the OCF-18 in question. The notice confirmed that the insurer received the OCF-18 on March 20, 2017. The decision was thus made about 35 days after the receipt of the Treatment Plan.
27Subsection 38(8) of the Schedule provides that within 10 business days after it receives the OCF-18, the insurer shall give the insured person a notice indicating whether it agrees or does not agree to pay for the assessment or services in question. Subsection 38 (11) provides that if the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and shall pay for all the goods, services, assessments and examinations described in the treatment and assessment starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
28The decision dated April 24, 2017 from the respondent denying the payment of the OCF-18 was based on its determination that the MIG applied to the applicant. Applying these provisions to this case, the insurer is prohibited from relying on the MIG to deny the applicant the cost of examination. However, because two of the three dates of the assessment were prior to the submission of the OCF-18, I find that the applicant is only entitled to receive the cost of the assessment conducted on the last day, namely April 19, 2017.
29As to the amount, the OCF-18 in question does not provide any indication as to how many hours were allocated for the visit prior to the submission of the OCF-18. I therefore direct the applicant to provide a breakdown of the expenses and fees incurred prior to the submission of the OCF-18 within 30 days of the release of this decision so the respondent can apportion the payment of this expense appropriately and in accordance with s.38(11).
Issue 3: Is the applicant entitled to receive a medical benefit in the amount of $2,900.00 for psychological services, recommended by Tingling Counselling in a treatment plan (OCF-18) submitted on May 17, 2017, denied by the respondent on June 19, 2017?
30I find the applicant is entitled to the OCF-18 for psychological treatment in the amount of $2,900.00 recommended by Dr. Tingling.
31Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
32The applicant relied on Dr. Tingling’s assessment in support of her position that she suffered from psychological impairments following the accident. The applicant also submitted that she received proper psychological treatment from Dr. Tingling following his assessment and subsequently recovered by the time she was assessed by Dr. Day.
33The respondent’s main argument for denying this claim was based on Dr. Day’s s.44 IE report. The respondent noted that the applicant reported to Dr. Day that she saw a social worker named Beverly for counselling and that she did not “stick around to find out” whether the treatment was beneficial as the sessions interfered with her work schedule. I note that the applicant works as a Personal Support Worker in a Long Term Care facility throughout the relevant time period.
34As I have noted above, I do not give Dr. Day’s report much weight as it was completed 18 months after the accident and did not opine on the applicant’s psychological condition prior to his assessment.
35As the applicant has pointed out, the respondent did not arrange an IE to address the treatment plan until May 25, 2018, more than 10 months after it received the OCF-18. Having delayed the examination, I do find it unfair for the respondent to rely on the IE to determine retroactively whether the applicant needed treatment a year prior. As the applicant has submitted, and I agree, prompt assessment of the applicant’s medical condition is essential to both parties’ interests.
36As I have found that the applicant has shown, on a balance of probabilities that she suffered from psychological impairment as a result of the accident, I also find that the OCF-18 for psychological services, is reasonable and necessary.
37The respondent pointed out that the clinical notes and records of Dr. Tingling indicate that the applicant started receiving cognitive behavioural treatment at his facility on May 17, 2017, and attended again on May 31, 2017, June 17, 2017 and June 28, 2017. The respondent also noted that three out of the four sessions took place prior to the submission of the OCF-18. However, as noted above, the OCF-18 for psychological services was dated May 17, 2017. It is therefore incorrect to state that three of out of the four sessions took place prior to the submission of the OCF-18. It is possible that the session on May 17, 2017 took place before the OCF- was prepared. But it is also equally possible that the session took place after the OCF-18 was prepared. As the Schedule is a benefit conferring statute, I will give the benefit of the doubt to the applicant and find that the May 17, 2017 treatment is included in the $2,900 treatment as provided by Dr. Tingling.
Issue 4: Is the applicant entitled to interest for the overdue payment of benefits?
38In view of my findings above, the applicant is entitled to interest as per the Schedule.
FINDING & ORDER
39The applicant did not sustain a minor injury and is not subject to treatment within the $3,500 limit.
40With respect to OCF-18 dated March 17, 2017, the applicant is entitled to payment of the cost of the psychological assessment conducted on April 19, 2017. The applicant shall provide a breakdown of the expenses and fees incurred prior to the submission of the OCF-18 within 30 days of the release of this decision so the respondent can apportion the payment of this expense appropriately and in accordance with s.38(11).
41The applicant is entitled to the full cost of the psychological treatment dated May 17, 2017. The applicant is entitled to interest on any overdue payments in accordance with the Schedule.
Released: July 3, 2019
Avvy Go
Adjudicator