Tribunal File Number: 18-000126/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:
H.W.G.
Applicant
and
Dominion of Canada General Insurance Company (Travelers)
Respondent
DECISION AND ORDER
ADJUDICATOR: Daniela Corapi
APPEARANCES:
For the Applicant: H.W.G., Applicant Nick Hamilton, Counsel
For the Respondent: Sharon Dagan/Sarah Scott, Counsel
HEARD: In Writing September 17, 2018
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was involved in an automobile accident on September 17, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2On September 17, 2014, the applicant was struck by an SUV (the “vehicle”) as she was exiting a gas station and walking towards her vehicle. The ambulatory records state that the paramedics attended at the scene and a pedestrian was struck by an SUV which was traveling between 0-5 kilometers per hour. The applicant was taken by ambulance to Markham Stouffville Hospital and released the same day.
3The Tribunal held a case conference on May 14, 2018, after which the matter proceeded to a written hearing. All submissions and evidence for the written hearing were filed with the Tribunal by July 17, 2018. A review of those documents forms the basis of this decision.
RESULT
4Based on the totality of the evidence before me, I find that the applicant has established on a balance of probabilities that her injuries are not predominantly minor injuries as defined in the Schedule because of her psychological injuries. The applicant’s depression and anxiety do not fall within the definition of “minor injury.”
5Having found that the applicant’s injuries are not minor, I find:
i. The treatment plans for chiropractic treatment are reasonable and necessary;
ii. The applicant is entitled to the cost of an examination for a psychological assessment in the amount of $2,000; and
iii. The applicant is entitled to interest on any overdue payment of benefits.
ISSUES
6I have to decide the following issues in this application:
i. Did the applicant sustain predominately minor injuries as defined under the Schedule?
ii. Is the applicant entitled to medical benefits in the amount of $2,230.64 for chiropractic treatment recommended by Perfect Physio in a treatment plan submitted on August 5, 2015, and denied on January 11, 2016?
iii. Is the applicant entitled to a medical benefit in the amount of $3,315.00 for chiropractic treatment recommended by Perfect Physio in a treatment plan submitted on April 4, 2017, and denied on April 20, 2017?
iv. Is that the applicant entitled to a medical benefit in the amount of $1,589.42 for chiropractic treatment recommended by Perfect Physio in a treatment plan submitted on October 12, 2017, and denied on October 30, 2017?
v. Is the applicant entitled to payments for cost of examinations in the amount of $2,000.00 for a psychological assessment, recommended by Perfect Choice Psychological Services in a treatment plan submitted on September 8, 2016, and denied by the respondent on September 14, 2016?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
EVIDENCE
7On September 17, 2014, the applicant was walking out of a gas station to return to her vehicle when she was struck by an SUV. On the day of the accident, the applicant was 53 years old with no pre-existing psychological conditions.
8According to the hospital record and the doctor’s assessment therein, the applicant was struck on her left side by a slow-moving vehicle and landed on her right side. The applicant’s chief complaint was “altered mental status”. The record notes that the vehicle which struck her was traveling 1-5 kilometers per hour, but that the applicant was not responding to bystanders on scene. The record indicates that the applicant showed symptoms of musculoskeletal complaints.
9The hospital record indicates that the applicant was unable to describe the origin of her pain and symptoms, and only began to respond verbally when she arrived at the hospital. It noted that the applicant moaned in response to painful stimuli and that she was holding her eyes shut when the crew attempted to open them to perform a pupil examination. The applicant's level of awareness was noted as not speaking and not responding. The applicant's daughter, who was in attendance, attempted to translate for her mother.
10The applicant was taken to Markham Stouffville Hospital by ambulance. The emergency record notes that the applicant reported being thrown five feet from the impact, and was experiencing pain, nausea, dizziness, bruising and pain in her right leg. The applicant was discharged the same day.
11On the day following the accident, she went back to the hospital with complaints of nausea, dizziness, bruising and pain in her right leg.
LAW
The Minor Injury Guideline
12The MIG establishes a framework for the treatment of minor injuries. The 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 also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.
13Sections 14 and 15 of the Schedule require the respondent to pay to the applicant medical and rehabilitation benefits if the applicant sustained an impairment as a result of the accident and the benefits are reasonable and necessary expenses that have been incurred by or on behalf of the applicant as a result of the accident.
14Section 18 creates three tiers of benefits relating to medical and rehabilitation benefits to a maximum of $3,500 for (1) an impairment that is predominantly a minor injury; (2) a maximum of $50,000 if the impairment is not a minor injury and is not catastrophic; and, (3) a maximum of $1,000,000 for an impairment that is catastrophic.
15The applicant has the onus of establishing entitlement. In its decision in Scarlett v. Belair Insurance1 (“Scarlett”), the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Thus, applying Scarlett, the applicant must establish entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
ANALYSIS
16The applicant’s evidence is that the vehicle propelled her a couple of meters and that she suffered a brief loss of consciousness. As a result of the accident, she states that she sustained physical and psychological injuries. At a pre-screening interview, Dr. Yeh, Psychologist, opined that the applicant presented with many of the symptoms commonly exhibited by individuals suffering from post-accident psychological impairment.
17The applicant’s evidence demonstrates that she sought treatment immediately following the accident. She consulted with her doctor regarding her chronic headaches, neck and back pain, and cognitive and psychological issues. She attended chiropractic and acupuncture treatments, specialist appointments for issues relating to insomnia, diagnostic imaging and she consulted a neurologist.
18The respondent submits that the applicant suffered a small abrasion to the right knee and patella, as noted in the hospital record. The respondent states that there were no signs of head trauma found.
19On the day following the accident, the applicant returned to the hospital with complaints of dizziness and right leg pain. The respondent states that X-rays of the right knee, tibia, and fibula showed no signs of fracture. Moreover, a CT scan of the applicant’s head indicated a normal examination.
20The respondent states that there were no pre-existing diseases, conditions, or injuries that could affect the applicant’s response to treatment.
21The respondent approved an OCF-23 submitted by the applicant’s chiropractor, Dr. Lui, on October 14, 2014. The injuries listed included dislocation, sprain and strain of joints and ligaments of the knee and thorax, and whiplash associated disorder with complaint of neck pain with musculoskeletal signs. A subsequent OCF-18 was submitted for the remainder of the MIG limits, which were also approved by the respondent.
22The applicant sought further chiropractic treatment from the same clinic; an OCF-18 was submitted by Dr. Palantzes to the respondent on August 5, 2015. The respondent denied the proposed treatment on the basis that the applicant’s injuries fell within the MIG and that the MIG limits had been exhausted. The respondent states that the applicant failed to bring an application to the Tribunal within two years of the respondent’s refusal to pay the amount claimed, as required by section 56 of the Statutory Accident Benefits Schedule, as amended, and is therefore statute-barred from claiming this treatment amount.
23The respondent states that the applicant underwent further post-accident testing, including an MRI of her right thigh, which was unremarkable.
24The respondent states that the applicant’s complaints of headaches, neck and back pain, were addressed by her family physician and a neurologist. An MRI of her head indicated no acute intracranial abnormality; an MRI of her spine indicated minor degenerative changes.
25The respondent conducted an insurer’s examination, a psychological assessment of the applicant, which concluded that no psychological diagnoses applied. The IE assessor noted that the applicant reported a sense of unhappiness, but that there was “no evidence in the evaluation of major depressive episode given the absence of depressed affect, cycle motor agitation or retardation, excessive or inappropriate guilt, or diminished ability to think or concentrate”. Moreover, the assessor did not find that her symptoms were sufficient to warrant a psychological label under the DSM-IV. The applicant was advised that her injuries continue to fall within the MIG.
26The respondent expressed concern with Dr. Tavares’s (chiropractor) list of injuries or sequelae because it argues that he was not qualified to make these diagnoses.
27The applicant attended a further insurer’s examination, a -psychiatric assessment, which concluded that she had reached maximum medical recovery for her injuries directly related to the accident.
28The applicant attended a further insurer’s examination, a neurological assessment, which concluded that the applicant’s psychological examination was normal and that there was no neurological sequalae as a result of the accident.
29The applicant attended a follow up psychiatric insurer’s assessment, which concluded that the there was no psychiatric diagnosis or impairment present.
30The respondent submits that the mere mention of psychological injuries does not automatically mean that an applicant is outside of the MIG. While I agree with the respondent on that point, in this case I am satisfied that the applicant has provided compelling, documented evidence. The treatment and assessment plans demonstrate that the applicant’s psychological injuries are sufficiently serious to remove her from the MIG.
31While I am in agreement that Dr. Tavares (chiropractor) is unqualified to make a diagnosis of a psychological nature, I find that the evidence and diagnosis presented by the applicant’s psychologist, Dr. Yeh, are within the proper expertise and are compelling. Moreover, Dr. Yeh’s evidence suggests that the applicant has not reached maximal recovery, which will be further discussed below.
ARE THE TREATMENT PLANS REASONABLE AND NECESSARY?
32Having found the applicant is out of the MIG because of her psychological impairment, she is able to access benefits greater than the $3,500 limit imposed by the MIG. To do so, however, she must establish that each treatment plan is reasonable and necessary.
COST OF PSYCHOLOGICAL ASSESSMENT
33I am satisfied that the applicant has provided compelling, documented evidence along with the treatment and assessment plan. These documents show that the applicant’s diagnosed psychological injuries are sufficiently serious to remove her from the MIG. I find the cost of examination for a psychological assessment to be reasonable and necessary.
34The applicant underwent a pre-screening interview at Perfect Choice Psychological Service Inc. on August 23, 2016, which was conducted by Xiao Lan Yang, M. Ed, under the supervision of Dr. Yeh, C. Psychologist. The interview was conducted for the purpose of uncovering any psychological consequences resulting form the accident, as well as providing recommendations with respect to treatment and feedback regarding the applicant’s emotional status.
35Dr. Yeh noted that the applicant presented as emotionally distressed, struggling with irritability, anxiety, fatigue and fear.
36Dr. Yeh provided a clinical opinion wherein he stated that the applicant’s clinical presentation demonstrates symptoms which are consistent with those suffering from post-accident psychological impairment. Dr. Yeh stated that the applicant’s physical and psychological challenges affect her daily activities and job performance, and the applicant should undergo a full psychological assessment to determine her clinical diagnosis and psychological treatment needs.
37The applicant states that she relied on medication to stabilize her mood swings and assist with sleep.
38Based on the applicant’s evidence and opinion provided by Dr. Yeh, I am persuaded that there is sufficient evidence of a severe psychological condition to warrant further investigation. I find the psychological assessment in the amount of $2,000.00 to be reasonable and necessary.
THREE TREATMENT PLANS - CHIROPRACTIC TREATMENT
39The remaining treatment plans are for chiropractic treatment. The objectives of the plans are pain reduction and increased strength to allow for the applicant’s return to her daily activities and pre-accident work activities.
40The clinical notes and records have several entries subsequent to the accident which support the need for the treatment. I find the treatment plans for chiropractic treatment to be reasonable and necessary for the reasons listed below.
41Dr. Yeh's notes show that as a result of the accident, the applicant continued to complain of ongoing headaches, and pain in her neck, back and right leg.
42Dr. Palantzas noted that the applicant’s physical impairment impacts her the ability to function in the cervical thoracic, lumbar spine, shoulder, left knee, and elbow region. In an OCF-18 dated August 4, 2015, Dr. Palantzas recommended a reassessment, chiropractic services, and active therapy and acupuncture.
43Dr. Tavares provided a treatment plan wherein he opined that the applicant's injuries were not minor in nature, and that she presented with functional challenges, including impairment to the spine.
44Two days after the accident, the applicant commenced chiropractic treatment with Dr. Lui. In an intake questionnaire at Dr. Lui’s office, the applicant reported the following post – accident hospitalization symptoms: headache, nausea, pain, stiffness, fainting, nervousness, irritability, cold sweats, dizziness, had feeling heavy, sleeping problems, depression, loss of balance, fatigue, cold feet and hands, tension, back pain, right knee pain, and generalized weakness.
45The objectives of the requested chiropractic treatment plans are to reduce pain and increase strength. I find the chiropractic treatment plans in the amount of $2,230.64, $3,315.00 and $1,589.42 to be reasonable and necessary to treat her continuing physical pain.
46I am persuaded that the applicant would benefit from further chiropractic treatment and that the treatment recommended would assist the applicant in returning to her pre-accident activities.
CONCLUSION
47I find that the applicant’s injuries are outside the definition of the MIG.
48I find the applicant is entitled to receive a medical benefit in the amount of $2,230.64 for chiropractic treatment recommended by Perfect Physio in a treatment plan submitted on August 5, 2015.
49I find the applicant is entitled to a medical benefit in the amount of $3,315.00 for chiropractic treatment recommended by Perfect Physio in a treatment plan submitted on April 4, 2017.
50I find the applicant is entitled to a medical benefit in the amount of $1589.42 for chiropractic treatment recommended by Perfect Physio in a treatment plan submitted on October 12, 2017.
51I find the applicant is entitled to the cost of examination for a psychological assessment in the amount of $2,000 in a treatment plan submitted by Perfect Choice Psychological Services on September 14, 2016.
52With respect to the respondent’s argument that the applicant failed to bring an application to the Tribunal within two years of the respondent’s refusal to pay the amount claimed in issue (ii), as listed above, and is therefore statute-barred, the respondent has failed to provide particulars substantiating this claim. The application was filed with the Tribunal on January 9, 2018 and the denial date for issue (ii) is January 11, 2016.
53I find that the applicant is entitled to interest on any overdue payment of benefits.
ORDER
54The Tribunal orders the payment of the treatment plans in dispute, for the cost of the psychological assessment, and any interest that may be owing.
COSTS
55Rule 19.12 permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.
56Both parties requested costs in this matter however, I am not persuaded by either parties’ respective position. I see no basis for believing that any such proscribed behaviour occurred in this matter. Both cost requests are accordingly denied.
Released: January 7, 2020
Daniela Corapi Adjudicator