[The Applicant] vs. The Guarantee Company of North America
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:
[The Applicant] Applicant
and
The Guarantee Company of North America Respondent
DECISION
ADJUDICATOR: Claudette Leslie
APPEARANCES:
For the Applicant: Anton Serikov, counsel for the Applicant
For the Respondent: Shawn McDonald, counsel for the Respondent
HEARD: In Writing August 26, 2019
OVERVIEW
1The applicant was involved in an automobile accident on March 30, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied certain benefits by the respondent insurer Aviva Insurance Company. The applicant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on May 8, 2019, and consequently the matter proceeded to a written hearing.
ISSUES
3The following are the issues to be decided:
(i) Is the applicant entitled to the cost of examination in the amount of $2,260 for a psychological assessment recommended by Medex Assessment in a treatment and assessment plan (OCF-18) submitted on December 12, 2017, and denied on March 29, 2018?
(ii) Is the applicant entitled to interest on any overdue payment of the benefit?
RESULT
4Considering all of the relevant evidence provided, I find that, on a balance of probabilities,
the cost of examination in the amount of $2,260.00 for psychological assessment, is reasonable and necessary; and
interest is due in accordance with section 51 of the Schedule.
PRELIMINARY MOTION
5The respondent brought a motion requesting that the Tribunal dismiss this application as the applicant failed to submit the treatment plan pertaining to the issue in dispute as part of her documentary evidence. The respondent’s motion is denied as I find no reasonable grounds for dismissing the application.
6The fact is that instead of the applicant, the respondent included the disputed OCF-18 along with its submissions. While parties are required and encouraged to provide/re-submit documents they intend to rely upon at the hearing along with their respective written arguments, in this case the respondent has submitted the document. In doing so, I find no prejudice to the respondent. Nor do I find it procedurally unfair to consider the document simply because it was provided by the respondent instead of the applicant.
BACKGROUND
7While riding a bicycle on March 30, 2013, the applicant was struck on the right side by an SUV. She fell off her bike and struck the left side of her body on the ground. She did not strike her head nor lose consciousness. She sustained cuts and bruises to her legs. She got to her feet when she became aware that she was lying in the middle of the intersection, and then fell back to the ground. She felt pain in her left shoulder and legs and was carried to the sidewalk. Paramedics arrived at the scene and she was taken by ambulance to [the hospital] where she underwent X-ray examination.
8She was diagnosed with a hairline fracture of the left shoulder/arm. She indicates that her arm was placed in a sling and she was discharged later that night with instruction to pursue physical therapy. She began physical therapy almost immediately following the accident and attended one to two times per week for approximately one year.
9Following X-ray(s), the applicant was informed that surgery was not possible to treat her subluxed sternoclavicular joint, and that she would experience permanent left shoulder/arm problems. She further notes that she was informed that if this sternoclavicular joint is dislocated this “can cause breathing and swallowing problems.’’
10Starting in August of 2013, the applicant developed problems with swallowing. The difficulties with swallowing and breathing persisted, as well as instances of light headedness, numbness and tingling in her body. Specifically, the applicant reports that in August 2013 she was eating dinner when she suddenly was unable to swallow. As a result, she went to a walk-in clinic, where she received a prescription for Ativan. She reports that approximately one week later she was waiting in line to purchase shoes. She suddenly felt lightheaded and her body felt numb and tingly, and she thought she would die. She indicates that she went to [a hospital] and was diagnosed with a panic attack. She reports that no specific treatment was provided.
11The applicant further reports that she returned to [the same hospital] on three further occasions concerning difficulty breathing and swallowing and worrying that she would choke. She reports that on each occasion she was diagnosed as suffering from a panic attack. She recalls that during this time she lost an estimated eight pounds, due to worry that eating food would result in choking. She was referred to an ENT specialist but notes that she was too anxious to undergo the exam, and as a result she consulted with a gastroenterologist, where she was examined. The examination yielded non-significant findings.
12At the time of the accident, the applicant was 20 years old, and apart from working as a counter server at an ice-cream café she was also a full-time student at [a university]. She reports that during the 2013 to 2014 academic year she began counselling with Social Workers at [the university], to address her fears of swallowing, panic attacks, and leaving home. She recalls that she was “cabbing everywhere" rather than travelling in enclosed spaces such as public transit. Through [the university] she was referred to a Psychiatrist and in February or March 2014 she was prescribed Cipralex. She reports that she had a negative reaction and it was discontinued after one and a half month’s usage.
13In approximately May 2014 she was prescribed Effexor by the school psychiatrist. She reports that she took this for approximately two and a half years to reduce anxiety, in particular panic attacks. However, she recalls among other things, this “made me feel hypomanic… erratic behaviour…drinking more heavily . . . binge drinking twice per week . . . not able to sleep.” She further notes that she began to use cocaine every few weeks with alcohol. Prior to the collision, she states, “I had a normal relationship with alcohol.”
THE LAW, EVIDENCE AND ANALYSIS
Issue (i): Whether the applicant is entitled to the cost of examination in the amount $2,260 for a psychological assessment.
14Sections 14 and 15 of the Schedule provides that the insurer shall pay for medical benefits to or on behalf of an applicant providing:
(i) The applicant sustains an impairment as a result of an accident; and
(ii) The medical benefit is a reasonable and necessary expense as a result of the accident.
15Section 25(1)3 of the Schedule further establishes 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.
16The issue here is not whether the applicant suffered an impairment, but whether she is entitled to the psychological assessment and resulting costs for services and treatment recommendations provided by Medex Assessment. The treatment plan was submitted approximately 4 years after the accident on December 12, 2017, rather than January 31, 2018 as indicated by the applicant, and denied on March 29, 2018. In keeping with the provisions indicated above, the test I must apply is whether the assessment/cost is “reasonable and necessary”.
17In doing so, I am mindful of the fact that the purpose of an assessment is to investigate whether a condition exits; in this case whether the accident has created an emotional and psychological impact on the applicant’s daily living. In this case, the doctor at Medex Assessment found this to be the case and he identified the treatment he considered necessary to return her to normal living.
18The applicant submits that she is entitled to the psychological assessment because the accident was the start of more than six years of acute physical and severe psychological distress she experienced.
19The respondent contends that the assessment/treatment plan in question is deficient on several accounts, and the assessment is unnecessary given that just 3 months prior, the applicant had been assessed by [a mental health facility] and was referred to a group therapy treatment program. The respondent relies largely on IE Psychologist Lubbers’s assessment of January 31, 2018, and addendum reports of May 11, 2018 and February 8, 2019.
20The burden rests with the applicant to prove that, on a balance of probabilities, she is entitled to the psychological assessment/treatment plan in question. I find that the applicant is entitled to the treatment plan for the psychological assessment for the following reasons: her medical records, specifically after the accident occurred, demonstrate persistent complaints of emotional and psychological issues, for which she has met with various medical professionals, and pursued various prescribed treatments. Specifically, I have considered the following evidence.
(i) The applicant’s pre-accident emotional/psychological condition is note-worthy. In her April 2015 meeting with Dr. Cernovsky the applicant’ s psychologist reported that she had experienced bouts of depression and anxiety before the accident occurred. The doctor rated the intensity of these pre-accident symptoms as “not outside of normal range.” Later, in consultation with a [mental health facility] psychiatrist in September of 2017, the applicant also reported that she had overdosed on Tylenol at age 16, in an attempt to commit suicide.
(ii) In a consultation report of September 13, 2017, the [mental health facility] doctor observes that the applicant had “no persistent sequelae… no psychiatric history prior to 2013” until after she was struck by the car while riding her bicycle. I find no evidence that would refute the doctor’s assessment that the applicant’s pre-accident, psychological/emotional condition had persisted, and in particular, during the 4 years prior to the accident.
(iii) [The hospital] emergency report, dated March 31, 2013, notes among other things that the applicant’s helmet fell from her head upon collision; and her past medical history is noted as “healthy.”
(iv) Clinical Notes and Records (CNRs) of family physician Dr. Sofia Bazios reflect frequent visits post-accident, including; October 16, November 4, 25, December 3, 2013, and from October 21, 2017 to February 5, 2018. The doctor makes various medical observations/ diagnoses during this period, including: breathing issues, due to stress/anxiety; the applicant missed a week of school months after the accident; she was referred to a psychiatrist; and the applicant was diagnosed with dysphagia (i.e. difficulty/discomfort in eating/swallowing), a condition for which a school psychiatrist had prescribed medication.
(v) [A hospital], March 11, 2014 letter indicates that Dr. R. Richards, surgeon-in-chief, saw the applicant with respect to injuries sustained in the accident. The doctor notes that the applicant had problems swallowing and shortness of breath, chronic pain, and at the time of examination, approximately 1 year after the accident, “she had not returned to pre-injury level of activity” and that she was taking medication for anxiety.
(vi) Disability Certificate (OCF-3), March 18, 2015, completed approximately 2 years later, by Occupational Therapist, Michael Sabayle finds that the applicant had sustained “Whiplash associated Disorder – WAD 3 with complaint of neck pain and neurological signs, General anxiety Disorder, Nonorganic sleep disorder, Post-Traumatic Stress Disorder…Headache, Numbness in Elbow.” The applicant reported complaints of, among other things, headaches, numbness in her left arm depression and anxiety. The therapist further observes that the applicant had experienced various psychological and emotional issues as a result of the accident. Of note is the fact that at that point, 2 years post accident, the therapist opines that over time the applicant’s psychological injuries had gotten worse. He consequently recommends further psychological treatment.
(vii) Later on April 21, 2015, psychologist, Dr. Zack Cernovsky, reports that while the applicant’s pre-accident anxiety/depression symptoms had not been overwhelming and they had been under control without the use of medication, “At present, … [she] still experiences various lingering psychological and physical symptoms related to her MVA of 2013”. He observes that since the accident, the applicant suffered “from dramatically increased levels of phobic tendencies, anger, somatic discomfort, anxiety, and depression. She also experiences some mild PTSD symptoms related to her MVA…” He recommends treatment by a therapist “with experience in treating victims of MVA”. The evidence indicates that, the applicant subsequently received 8 sessions of the recommended treatment from July 6 to September 26, 2015.;
(viii) [A mental health facility] record of Sept. 13, 2017, indicates that the applicant “had no psychiatric history prior to 2013.” The doctor, Zhou, notes, “Over the course of several months she reported worsening generalized anxiety, feeling easily overwhelmed with a decreased mood and panic attacks. She described coping with escalating amounts of alcohol and cocaine. In early August she reported beginning a course of mindfulness CBT with Mr. Alan Davis and reported it being somewhat helpful for anxiety noting she likes the Buddhist approach. Other trauma and stress related disorders (sub-threshold PTSD) with panic attacks.”
(ix) Dr. Z. Cernovsky’s re-assessment report of April 16, 2018, over 5 years post-accident, indicates, among other things, that the applicant: was still experiencing “lingering psychological and physical symptoms”, intense pain and panic attacks. He observes that “the key impairment factors are [applicant’s] anxiety, depressive symptoms…and PTSD symptoms related to vehicular traffic…” He recommends 20 one-hour sessions of psychological treatment, provided specifically “by a therapist with experience in treating victims of MVAs”. The doctor further opines that the recommended treatment would provide the applicant with needed, extensive emotional support, which he believed would reduce her suicidal risk.
(x) On January 31, 2018, 4 years and 10 months after the accident, psychologist Ralph Lubbers, conducted an assessment on the insurer’s behalf. In his report, Dr. Lubbers notes that the applicant continued to complain of anxiety and panic attacks” and that she was “binge drinking” as a result. He observes that she “certainly appeared genuine and sincere in her reported emotional difficulties and earnest in her desire to improve her mental health.”
While the assessor observes there was an insufficiency of medical documents before him for consideration and a considerable passage of time, he recommends that , “further evaluation from a mental health perspective is best undertaken by a Psychiatrist with expertise not only in motor vehicle accident psychological injury but also in examining psychotropic medication issues, in particular, the side-effects of Effexor in anxiety, and in drug and alcohol addiction.”
(xi) In his addendum report of May 11, 2018 and after conducting a review of additional documentation Psychologist Lubbers concludes that the applicant’s psychological, in particular, anxiety was accident related; and he suggested the need for psychological treatment.He nonetheless concludes that the assessment/treatment plan in question was unnecessary, for reasons including the fact that the applicant, just month’s prior, had undergone psychiatric/mental health evaluation/treatment at [a mental health facility].
Is the psychological assessment/cost reasonable and necessary?
21I find the psychological assessment recommended by Medex Assessment, submitted, 4 years post-accident, is reasonable and necessary based on compelling evidence that:
The psychological/emotional symptoms identified by the applicant did not exist in the nature or prevalence prior to the accident, and in particular during the 4 years since the applicant’s overdose at age 16 (the applicant was 20 years old at the time of the accident). The evidence supports the finding that the applicant’s psychological/emotional symptoms surfaced and increased after the accident;
Her psychological/emotional symptoms persisted and continued to affect her life, well after the accident occurred, as evidenced by the fact she constantly and frequently sought medical assistance to mitigate her condition. In fact, IE assessor Lubbers in his assessment conducted 4 years and 10 months after the accident, observes that the applicant “…appeared genuine and sincere in her reported emotional difficulties and earnest in her desire to improve her mental health…” Later in his May 2018 paper review the doctor concludes that the documents provided supported “the conclusion of an accident-related contribution to her psychological presentation, in particular with respect to increased anxiety, which pre-existed the index collision, occurring in the context of concurrent personality issues. These factors suggest outstanding accident-related psychological treatment needs…”
The evidence, including the IE assessor’s reports, indicate that even 4 years and 10 months after the accident, the applicant was considered genuine and forthcoming in her psychological/emotional complaint and that there were outstanding accident-related psychological treatment needs.
The fact that the applicant had received psychiatric treatment at [a mental health facility] just 3 months prior to undertaking the assessment/plan in question, does not in my view negate the reasonableness/necessity of the assessment in question, as the respondent claims. Particularly because, I find no evidence that her [mental health facility] psychiatry assessment/treatment was conducted by, as specified/required by psychologist Cernovsky, by a therapist “with experience in treating victims of MVA”, or as indicated by IE assessor Lubbers “by a psychiatrist with expertise not only in motor vehicle accident psychological injury but also in examining psychotropic medication issues…”
Investigating her persistent and invasive, post-accident, emotional and psychological condition, as indicated by the assessment/treatment in question, was not only reasonable, but necessary, for an individual, who from all indications sought to return to “the person she was prior to the accident”. This was the intent reported by the applicant in 2016 CNRs of Dr. Chloe Leon [of the mental health facility], where she was seen at the Mood and Anxiety Urgent Care Clinic. At that time, approximately 3 years post accident, Dr. Chloe Leon’s diagnosis was, “Other Trauma and stress related disorders relating to the motor vehicle accident in 2013.”
I am not convinced, as the respondent claims, that having Occupational Therapist (OT) Diane Lang involved in assessing the applicant as the assessment/treatment plan in question indicates, invalidates the assessment. The document also indicates that the therapist was supervised and authorized by expert psychologist, Cernovsky. This does not warrant a finding that the assessment/plan in question, is any less reasonable/necessary, as determined.
Issue (ii): Whether the applicant is entitled to interest
22The applicant is entitled to interest for the psychological assessment at issue. Interest is payable in accordance with section 51 of the Schedule.
CONCLUSION/ORDER
23In determining the merits of this matter, I note here that as in the case law submitted by the parties, I have applied the appropriate test as it relates to the specific particulars/circumstances, facts and the relevant evidence provided, in this case.
24I order that:
(i) The applicant is entitled to payment for the cost of examination in the amount of $2,260 for psychological assessment recommended by Medex Assessment in a treatment and assessment plan dated December 8, 2017; and
(ii) The applicant is entitled to interest on any overdue payment of the benefit.
Released: February 6, 2020
Claudette Leslie Adjudicator