Released Date: 12/23/2020
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.P.T.T.
Applicant
and
Allstate Canada
Respondent
DECISION
VICE CHAIR:
Eleanor White
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
Lisa Quan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant (A.T.) was injured in an automobile accident on April 7, 2017, and subsequently sought benefits from the respondent, Allstate Insurance Company (Allstate), pursuant to the Statutory Accident Benefits Schedule – effective September 1, 2010 (Schedule)1. The applicant was the seat-belted driver, progressing through an intersection when she was struck in the front driver-side of her vehicle, causing her vehicle to begin to spin. The airbags were deployed as a result of the collision.
2The insurer covered the expense of her initial treatment but when A.T. subsequently applied for further medical benefits and the cost of examinations, she was denied the benefits by Allstate on the grounds that her injuries sustained in the accident were classified as predominantly ‘minor injuries’ as defined in the Schedule, and as she had reached the maximum available coverage on that basis, Allstate could not exceed the available coverage for medical benefits. A.T. disagreed with Allstate’s decision regarding the designation of her injuries within the definition of ‘minor’ injuries and its denial of the treatment plans. She then submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.
ISSUES TO BE DECIDED
3The following are the issues in dispute to be decided, as set out in the Case Conference Order of September 4, 2019:
Did the applicant sustain predominantly minor injuries as defined under the Schedule?
Is the applicant entitled to a medical benefit in the amount of $1,892.20 for chiropractic treatment recommended by VCare Rehabilitation Centre in a treatment plan (OCF-18) submitted on August 10, 2017 and denied on August 24, 2017?
Is the applicant entitled to be reimbursed for the cost of an examination in respect of a psychological assessment recommended by Somatic Assessment and Treatment Clinic submitted on February 26, 2018 and denied on March 9, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant entitled to an award under Ontario Regulation 664 because of the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4The injuries sustained by A.T. as a result of the accident are predominantly minor injuries, as defined in the Schedule. I find that A.T. has not met her onus to demonstrate that, on a balance of probabilities, she has sustained psychological impairments or chronic pain as a result of the accident. As such, the injuries are treatable within the Minor Injury Guideline (MIG).
5Notwithstanding my findings based on the evidence that A.T. is properly within the MIG and that the maximum funding limit has been exhausted, I analyzed the treatment plans for reasonableness and necessity. I find that neither treatment plan is reasonable and necessary as outlined below.
ANALYSIS
Applicability of the Minor Injury Guideline
6I find that A.T. sustained predominantly minor physical injuries as defined by s. 3(1) of the Schedule. As such, she is found to be treatable within the MIG, a mechanism designed to allow expedient access to treatment for those with injuries that meet this definition. The guideline for treatment of predominantly minor injuries provides recovery of medical and rehabilitative benefits up to $3,500. The Divisional Court, in Scarlett v. Belair Insurance2 established that the onus is on the applicant to prove, on a balance of probabilities that she is entitled to a higher level of benefits.
7A.T.’s treatment providers, Dr. Peter Counti, Chiropractor and Dr. Georgia Palantzas, Chiropractor listed a number of injuries arising from the accident, including sprain/strain injuries of the lumbar spine, shoulder, ribs, sternum, neck, wrist and ankle as well as muscular strain at the neck with radicular symptoms, knee, and tension-type headaches, and phobic psychological issues. In her disputed treatment plan3, dated August 10, 2017, Dr. Palantzas listed chronic injuries and pain, decreased range of motion and radicular symptoms as barriers to recovery. She also listed sleep disturbance and fatigue as part of A.T.’s presentation. She thus recommended further treatment with reassessment, and 10 sessions each of the application of muscle stimulation modalities (TENS or IFC) and of ‘active therapy/acupuncture’. Previous treatment recommendations were unavailable, and there is no evidence if this treatment was a continuation of similar therapy or a change in approach.
8A.T. attended a s. 44 Insurer’s Examination (IE) on August 18, 2018 with Dr. Yuri Marchuk, physiatrist, who reported on September 4, 2019, after reviewing all medical records and imaging reports, specialist’s letters and treating provider’s and family doctor’s records that A. T.’s injuries fell within the definition of a predominantly minor injury. Diagnostic imaging tests, apart from the single finding of mild degenerative changes at the shoulder AC joint, were all negative. All exam findings, apart from some minor dysfunction and tenderness at the medial knee joint, were unremarkable. Diagnoses of a WAD 2, bilateral cervical-thoracic and lumbar myofascial dysfunction and left patellar-femoral joint dysfunction were all soft tissue injuries. A.T. stated that, apart from headaches, there was no prior history of these complaints.
9The records of any consultation with a family doctor, include only those of Dr. Poon, whom A.T. consulted as a new doctor on her first visit on December 8, 2017. He tracked her disclosure of the accident, occurring several weeks before that consultation, as well as her knee pain. He sent her for x-rays and ultrasounds of her left knee, left elbow, and shoulder, and referred her to Dr. Wong, physiatrist, who recommended Celebrex and opined that her left knee was essentially an osteoarthritic issue.
10The treatment provided to date of the disputed plan had afforded to A.T. a self-reported benefit of temporary relief and she appreciated ‘massage’ as a therapy and occasionally took Advil Extra Strength as needed.
11From a physical perspective and in the opinion of the IE assessor, A.T.’s physical injuries are predominantly minor in nature, consistent with the definition in s. 3(1) of the Schedule.
12I am satisfied that A.T.’s physical injuries are predominantly minor; however, that is not the end of the inquiry. Alternatively, A.T. may escape the MIG by producing compelling medical evidence of a pre-existing condition, which would limit her ability to achieve maximal medical recovery if confined to the MIG, or present evidence of a psychological injury that could remove her from the MIG. The Schedule’s definition of minor injury does not include psychological injuries.
Chronic Pain and Psychological Impairment
13I find that A.T. has not provided evidence to establish, on the balance of probabilities, that she sustained a diagnosable psychological impairment and/or chronic pain so as to exclude her from the MIG and access further medical and rehabilitative benefits.
14The pathway to a psychological pre-screening for psychological impairment did not originate in her family doctor’s office but in her physical treatment facility, starting with a complaint of sleep disturbance. A pre-screening was conducted by Dr. Sharleen McDowell, psychologist, and submitted on February 26, 2018 through VCare Rehabilitation Centre. There is no indication of the presence of an interpreter involved in this assessment, as the document is both undated and does not list interpreter assistance in the Cantonese language (as there was in the assessment with Dr. Marchuk).
15Dr. McDowell details the subjective report of A.T. as to how she is feeling, her complaints with respect to progress with pain, her general stress and fatigue, and her work environment. A.T. described continuing sleep issues, however, she had previously told Dr. Marchuk the sleep disturbances were only noted in the first week after the accident. Her report of avoidance of driving and preference to be a passenger was noted. I place little weight on the pre-screen report, as firstly, due to its preliminary nature, there were no extensive tests conducted for anxiety, depression or for validity and, secondly, because it stands alone in its suggestion of psychological impairment. Dr. McDowell’s concluding opinion is that A.T. is experiencing lingering pain and fatigue and that she is “experiencing many of the symptoms of individuals suffering from post-accident psychological impairment”4. She recommends a full psychological assessment with a battery of tests to provide a formal diagnosis.
16The respondent denied the OCF-18 without a corresponding s. 44 assessment. The respondent submits that the onus falls on the applicant to provide sufficient evidence to support the claimed benefit is reasonable and necessary, in this case, for a full psychological assessment.
17In reviewing the evidence submitted to the Tribunal, including Dr. Poon’s notes, there is no evidence of psychological impairment or otherwise a referral for a chronic pain assessment or psychological consultation. In Dr. Poon’s notes, there are remarks about the evolution of knee pain to bilateral knee pain and, in Dr. Wong’s physiatry notes, there are the opinions that the knee pain is arthritic in nature, certainly not unlikely over time.
18There is no evidence of the presence of chronic pain syndrome or even a chronic pain situation that, in order to compel the exclusion from the MIG, must include evidence of a negative effect on the individual’s functionality.
19I appreciate the decision of V.G. v. Aviva Insurance Canada5 in which the adjudicator stated that the presence of ongoing pains from injuries from an automobile accident is insufficient in itself, but must involve a level of pain that precipitates functional impairment or disability or causes suffering, distress. There is no indication of functional impairment.
20I find that A.T. has not demonstrated, on a balance of probabilities, that she suffers from an impairment that justifies treatment beyond the MIG.
Is the treatment plan for $1,892.20 reasonable and necessary?
21I have determined that A.T. is properly treated within the MIG, and despite the exhaustion of the limits of the MIG, I will analyze whether the treatment plan in dispute is reasonable and necessary.
22I do not find the treatment plan to be reasonable and necessary. The treatment recommendations include only very passive treatment, including the application of either TENS or IFC, and acupuncture without any specific treatment indicated for rehabilitation of the shoulder and knee complaints. A.T. reports to Dr. Marchuk that she has experienced only 20% improvement and that the relief provided by the modalities is strictly temporary. A.T. tells both Dr. Marchuk and her family doctor that she wants to continue with massage. The value of continuing passive care is not evident. Dr. Marchuk found no restriction in A.T.’s range of motion except minimally in the shoulder and his physical findings were negligible. The plan provides little incentive to reconsider the decision of the insurer or of this adjudicator, regarding the MIG.
23I find the treatment plan in the amount of $1,892.20 for continuing chiropractic treatment to be not reasonable or necessary.
Is the OCF-18 for the pre-screening psychological assessment in the amount of $2,200.00 reasonable and necessary?
24The treatment plan for the psychological pre-screening carries little weight for reasons already stated above. The report is undated, perhaps conducted at a disadvantage without an interpreter (as one was required for the s. 44 assessment with Dr. Marchuk), contains only self-reporting and offers no verifiable diagnosis. The recommendations are not substantiated by any other treating or consulted healthcare provider.
25I find the treatment plan in the amount of $2,200.00 for a pre-screening report to be not reasonable or necessary.
CONCLUSION
26For the reasons I have given above, I find that:
i. A.T.’s injuries sustained in the accident are consistent with the definition of predominantly minor injuries in s. 3(1) of the Schedule and as such are treatable within the MIG. I also find that she has not suffered a psychological impairment or a diagnosis of chronic pain that would exclude her from the limitations of the MIG.
ii. A.T. is not entitled to the treatment plan for further chiropractic treatment in the amount of $1,892.20 as it is not reasonable and necessary.
iii. A.T. is not entitled to the cost of reimbursement for the pre-screening report and its recommendations, in the amount of $2,200.00 as it is not reasonable and necessary.
iv. As there are no overdue benefits, there is no interest owing to the applicant.
v. As the applicant made no submissions regarding an award under Ontario Regulation 664, the issue is dismissed.
27The application is dismissed.
Released: December 23, 2020
Eleanor White
Vice Chair
Footnotes
- O. Reg. 34/10 under the Insurance Act, R. S. O. 1990, c. 1.8
- Scarlett v. Belair, 2015 ONSC 3635
- OCF-18 dated August 10, 2017, VCare Rehabilitation Centre, page 10 of 11
- Pre-screening report of Dr. Sharleen McDowell, OCF-18 dated February 26, 2018, page 13
- V.G. v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT) at paras 22-23 and 28-29