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:
A. J. M. A.
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Thérèse Reilly
Appearances:
For the Appellant:
Mr. Edward Brogden, Counsel
For the Respondent:
Amanda Lo Cicero, Counsel
Heard: In Writing
May 8, 2019
OVERVIEW
1The applicant was involved in an automobile accident on July 27, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant applied for medical benefits for payment relating to four treatment plans for physiotherapy and the cost for three OCF-3s, all of which were denied by the respondent. The treatment plans were denied on the basis that the applicant has not proven that she has injuries which fall outside of the Minor Injury Guideline. Alternatively, the respondent claims these are not reasonable and necessary. In the case of the OCF-3s in dispute, the insurer states it is not obliged to pay for the OCF-3s because the applicant is not in compliance with section 25(1) of the Schedule.
ISSUES
3The issues listed in the case conference Order dated November 7, 2018 are as follows:
i. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for physiotherapy treatment recommended in the treatment plan (OCF-23) of Pain Rehabilitation Clinic dated August 23, 2017 and denied by the respondent on September 5, 2017? In its submissions the respondent agrees to pay for the benefit. This claim is therefore no longer in dispute.
ii. Is the applicant entitled to a medical benefit in the amount of $1,250.00 for physiotherapy treatment recommended in the treatment plan (OCF-18) of Pain Rehabilitation Clinic dated November 8, 2017 and denied by the respondent on November 23, 2017? In its submissions, the respondent agrees to fund the treatment in the amount of $989.67, leaving the balance in dispute in the amount of $260.33.
iii. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for physiotherapy treatment recommended in the treatment plan (OCF-18) of Pain Rehabilitation Clinic dated January 10, 2018 and denied by the respondent on January 12, 2018?
iv. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for physiotherapy treatment recommended in the treatment plan (OCF-18) of Pain Rehabilitation Clinic dated May 15, 2018 and denied by the respondent on May 24, 2018?
v. Is the applicant entitled to payment of $200.00 for the completion of an OCF-3 dated August 23, 2017 and denied by the respondent on February 9, 2018? In its submissions the respondent agrees to fund this OCF-3 and thus it is no longer in dispute.
vi. Is the applicant entitled to payment of $200.00 for the completion of an OCF-3 dated November 11, 2017 and denied by the respondent on February 9, 2018?
vii. Is the applicant entitled to payment of $200.00 for the completion of an OCF-3 dated January 25, 2018 and denied by the respondent on February 9, 2018?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
4A review of the parties’ submissions reveals that whether the applicant’s impairment is of a nature that it falls within the Minor Injury Guideline is also in issue.
5For the reasons set out below, I find that the applicant’s impairment falls within the Minor Injury Guideline. The applicant is not entitled to the medical benefits as they are not reasonable and necessary. The applicant is not entitled to the cost of the OCF-3s. Interest is not payable as there is no overdue payment of benefits.
ANALYSIS
THE LAW
6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 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 also defined in section 3.
7Section 18 (1) limits recovery when the MIG applies to $3,500. Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the insured person from achieving maximal recovery if benefits are limited to the amount in the MIG.
Did the applicant sustain an impairment to remove her from MIG?
8The applicant submits that her injuries are not minor because, as a result of the accident, she suffered a psychological impairment which takes her out of the MIG. I find there is insuffient evidence of a psychological impairment to take the applicant out of the MIG.
9The applicant relies on the report of Dr. Moshiri, psychologist, as evidence to remove her from the MIG. Dr. Moshiri completed a psychological assessment of the applicant on January 24, 2018 to assess the applicant’s claim for an income replacement benefit. Dr. Moshiri issued her report dated March 1, 2018 and, following her assessments that included six empirical tests, concluded the applicant had a DSM-5 diagnoses of Adjustment Disorder with mixed anxiety and depressed mood-Specific (isolated) Phobias, vehicle anxiety and sleep-related fatigue. The applicant reported to her that she drove only when necessary as she had driver anxiety. The doctor concluded the applicant sustained an impairment as a direct result of the motor vehicle accident which was described as including low mood, irritability, vehicular anxiety, and sleep fatigue. She concluded, however, that the impairment did not amount to a substantial inability to carry on the tasks of her employment.
10The applicant was examined by Dr. Connolly, neurologist for the insurer, on February 13, 2018, an assessment that focussed on entitlement to the IRB claim. One of the main pain complaints by the applicant following the accident is neck and back pain and that she continually suffers from headaches. In her report dated March 1, 2018, Dr. Connolly concluded that the applicant may have chronic post-traumatic headaches but concluded that medication overuse may be contributing to the headaches. She did not conclude the headaches were due to the accident. The applicant reported ongoing pain, needing assistance with dressing, bathing and washing/styling her hair and household tasks and caring for her child, and drove only for emergencies. Dr. Connolly found the applicant suffered a mild neurological impairment.
11In reply submissions, the applicant refers to Dr. Connolly and maintains Dr. Connolly stated the applicant is suffering from chronic pain. I do not agree Dr. Connolly concludes this in her report. There is no analysis or conclusion by Dr. Connolly that the applicant suffers from chronic pain. Dr. Connolly opined that the applicant suffered from chronic headaches which were likely due to overmedication. She found only a mild neurological impact from the accident and not chronic pain. She recommended that the applicant see her family doctor and change her medication for the headaches.
12The respondent had the applicant assessed by physician Dr. Kruger on February 8, 2018. His assessment report dated February 23, 2018 and a second report completed March 1, 2018 both indicate that during her assessment the applicant wore a neck brace and walked with a cane. It was noted she did not report any pre-existing medical conditions. She also reported difficulty doing household chores without assistance. She reported shoulder and neck pain which was worse when standing, bending, sitting and driving. Notwithstanding these reported conditions, Dr. Kruger concluded that her injuries were minor and the treatment plan for $2000 dated January 2018 was not reasonable and necessary. The respondent relied on Dr. Kruger’s report and conclusion to deny the treatment plan.
13The applicant also submitted handwritten notes of the family doctor from 2015 onwards, which indicate that the applicant had a pre-existing history of headaches, nausea and dizziness. She also had a documented history of ongoing stress, anxiety and depression dating to 2015 with associated tremor, decreased sleep, weight gain, and irritability, and was prescribed medication.
14As highlighted by the respondent in its submissions, there are gaps in the notes of the family doctor’s records for almost eight months between October 2017 and May 9, 2018. The May 9, 2018 note identified muscle pain, as well as anxiety and depression, with no reference to the accident. Subsequent notes that referenced issues with pain, depressed mood and anxiety similarly did not reference the accident.
15The applicant claims she consistently complained of her pain symptoms following the accident both to her family doctor and the Pain Rehabilitation Clinic. The notes of the family doctor indicate the applicant complains of ongoing pain and headaches but there is no evidence from the family doctor or the treating physiotherapists and the chiropractor that the injuries listed in the OCF-18s in dispute go beyond a minor impairment. The applicant also argues due to her ongoing pain she continues to obtain treatment as such the medical benefits are reasonable and necessary.
16The OCF18s list the injuries as whiplash and minor sprains and strains which are minor injuries within the definition of the Schedule. Dizziness is listed as an injury but this condition is beyond the scope of expertise of a chiropractor or physiotherapist. A contusion of the thigh is also listed but there is no medical information provided by the applicant in relating to this condition other than a reference in the OCF-18. I find there is insufficient evidence presented by the applicant that her physical pain complaints take the applicant out of the MIG.
17The OCF-3s dated August 23, 2017, November 8, 2017, and January 25, 2018 did not identify any physical injuries or diagnoses that fell outside of MIG. They also did not identify any accident-related psychological or emotional injuries or sequela. The records of Pain Rehabilitation Clinic similarly did not identify any injuries or diagnoses that fell outside of the MIG.
18X-rays of both shoulders and the lumbosacral spine on September 17, 2018, identified no abnormalities. Ultrasounds of both shoulders of the same date identified bursitis and a tear of the subscapularis tendon in the right shoulder. The left shoulder was normal. In the family doctor’s notes, there is a report for an x-ray that identifies under the heading for the right shoulder, the probable presence of bursitis. There is no evidence to link this to the accident.
19I find that the applicant does not suffer from any pre-existing conditions, which prevents her from achieving maximal recovery under the MIG and would take her out of the MIG. The applicant reported no prior conditions to the psychologist and the OCF-18s make no reference to prior conditions. I have no evidence to support a claim that pre-existing conditions prevent maximal recovery from the injury as required by section 18(1) of the Schedule.
20I find the applicant has not established that her injuries are other than minor injuries.
21No evidence was led or submisisons made by the parties as to whether or not the applicant has exhausted the MIG limit. As such, I cannot make a determination as to the remaining limit under the MIG.
Medical Benefits and whether they are Reasonable and Necessary
22The applicant argued the medical benefits for physiotherapy treatment are reasonable and necessary.
23The report of Dr. Moshiri relates to a claim for an IRB in which she concluded there was insufficient evidence to show she could not return to her employment. It is also not clear how this report provides evidence that the treatment plans for physiotherapy are reasonable and necesary. There is no clear link to the allegation of a psychological impairment and claim that the applicant requries physiotherapy treatment.
24Dr. Kruger also concluded the January 10, 2018 treatment plan was not reasonable and necessary, as the range of motion and strength of the applicant were normal across most joints, with only mild reduction of flexion in the lumbar spine. He concluded the applicant’s injuries fell within the MIG.
25The respondent raises the issue of credibility based on its video surveillance. The respondent asserts that the applicant’s claims of the severity of injuries as reported to the assessors and impact of the injuries on her level of functioning is questionable and not to be accepted.
26Video surveillance evidence1 of the applicant was obtained on December 21, and 22, 2017, January 16, 18, 2018 and March 6, 2018. In the footage, she is observed retrieving bags from a vehicle, taking them into her residence, returning to the vehicle a few minutes later, reaching into and then climbing into and out of the vehicle via the opened trunk with no difficulty in movement, and then entering the driver's seat and driving off in the vehicle. On January 16, 2018, the applicant went to work where she was observed preparing meals in take-out trays, using the cash register, lifting and pouring from a kettle with her right arm, collecting a large cooking pot from under a counter, and cooking. On January 18, 2018, she was observed dropping her daughter off at school in the morning. She then stopped at a clothing donation bin, placing three bags in the bin, before driving to the restaurant and parking. On March 6, 2018, she was later viewed working at the restaurant.
27During the assessments with Dr. Kruger on February 8, 2018 and Dr. Moshiri, on January 24, 2018, the applicant wore a neck brace and used a cane. During the surveillance taken on December 21, and 22, 2017 and at various times in January 2018 and March 6, 2018 the applicant did not wear a neck brace, use a cane, or demonstrate pain behaviours or observable physical limitations, or receive assistance with the multitude of tasks.
28The respondent raises the same argument regarding evidence obtained on an examination under oath on the basis that the applicant’s claims of the severity of injuries as reported to the assessors and impact of the injuries on her level of functioning is questionable and not to be accepted.
29The applicant attended for an Examination Under Oath further to section 33 of the Schedule on March 1, 2018. She attended the examination wearing a neck brace and using a cane. Her sworn testimony is that she only took the neck brace off when she went to sleep, she had been using the cane for the past six months. She used the cane at all times when walking and standing. She testified she only drove for emergencies, sometimes once a week, and there was always someone with her outside of her home, that her daughter was driven to school by friends with their children in a carpool, and that in the past six months she had never driven the carpool because she was physically unable to. Further, she was unable to work since the accident and had not tried to do so because she was in too much pain and could not stand for a long time.
30I find based on the video surveillance and the testimony under oath that there are inconsistencies between the severity of pain as reported by the applicant to the doctors and the applicant’s level of functioning. For example, she reported driver anxiety and that friends drive her child to school. In the video she is observed driving on several occasions. She testified of the need to continually wear the neck brace but this is not evident in the video. I find there are discrepancies between the testimony and reports of injuries to the doctors about her injuries and impact on her activities. Despite the applicant wearing a neck brace during her assessment, Dr. Kruger did opine the injuries were minor. Dr. Connolly found a mild impairment and the issue of headaches was not accident-related.
31I find on the totality of the evidence before me and my findings set out above, that the treatment plans for physiotherapy are not reasonable and necessary.
Charges Exceed Professional Services Guideline
32The respondent also argues that the November 8, 2017 OCF-18 was properly denied as the applicant charged rates that exceeded those permitted by the Professional Services Guideline, requesting $150.00 per hour for chiropractic services instead of the $112.81 maximum. The respondent argues the Professional Services Guideline expressly provides that insurers are not liable for expenses related to professional services rendered to an insured person that exceed the maximum hourly rates beyond what is permitted. I agree. On this additional basis, the remaining balance of $260.33 for the OCF-18 is denied.
Payment of the OCF3s
33The respondent raises the issue that the OCF-3s were not requested by it and thus it is not obliged to pay for these pursuant to Section 25(1) of the Schedule, which states that an insurer shall pay for reasonable fees charged for preparing a disability certificate if required under Section 21, 36 or 37 of the Schedule. With the exception of the first disability certificate which it has agreed to fund, it states there is no obligation under the Schedule for an insurer to pay for subsequent disability certificates it did not require or request. I agree. On this basis, the claims for the OCF-3s are denied.
Interest
34Since I did not find any benefit to be payable, no interest is applicable.
CONCLUSION
35For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries. I find that the applicant is not entitled to any of the treatment plans as they are not reasonable and necessary. The claim for payment of the OCF-3s is dismissed.
Released: July 29, 2019
Thérèse Reilly
Adjudicator