Tribunal File Number: 19-000300/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:
N.S.
Applicant
and
Wawanesa Insurance Company
Respondent
DECISION
PANEL: Jesse A. Boyce, Adjudicator
APPEARANCES: For the Applicant: Christopher D. Finlay For the Respondent: Roman Myndiuk
HEARD: In Writing on: October 7, 2019
OVERVIEW
1N.S. was injured in an automobile accident on November 7, 2016 and sought benefits from the respondent, Wawanesa Insurance, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). N.S. applied for medical and rehabilitation benefits that were denied by Wawanesa because it determined her injuries were predominately minor and therefore subject to treatment within the Minor Injury Guideline (“MIG”). N.S. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The following are the issues in dispute:
i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,095.28 for chiropractic treatment recommended by Pro-Life Wellness Centre in a treatment plan (OCF-18) submitted on March 16, 2017, and denied on June 2, 2017?
iii. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Dr. Akram Pali in a treatment plan (OCF-18) submitted on June 10, 2017, and denied on July 5, 2017?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find N.S. has demonstrated, on a balance of probabilities, that she sustained a psychological and/or neurological impairment as a result of the accident that justifies treatment beyond the limits of the MIG.
4I find N.S. is entitled to payment for the cost of the psychological assessment, as it is reasonable and necessary. Interest pursuant to s. 51 applies.
5I find N.S. is not entitled to payment for the medical and rehabilitation benefit for chiropractic treatment as it is not reasonable and necessary.
ANALYSIS
Applicability of the Minor Injury Guideline
6I find the medical evidence indicates that N.S. suffered predominantly minor physical injuries as a result of the accident. The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Applying Scarlett v. Belair Insurance,2 N.S. must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities.
7N.S. argues that her pain, primarily in her neck and lower back, is severe enough to warrant treatment beyond the MIG. N.S. relies on various clinical notes and records, a psychological report and a neurological report as proof that her physical injuries are not “minor injuries” as defined in the Schedule. Three days post-accident, N.S.’s family physician diagnosed her with pain and tenderness in the muscles of her neck, shoulder, scapula, ribs, and chest on her right side as well as a diagnosis of WAD II. N.S. began physiotherapy a few days later with complaints of right-sided shoulder, chest and ribcage pain, headache and low back pain. A Disability Certificate (“OCF-3”) completed by her physiotherapist specifies other symptoms, including “dizziness, irritability and generalized anxiety.” More recently, her physical impairment primarily concerns her neck, lower back and headaches.
8In response, Wawanesa argues that the injuries alleged by N.S. are all soft-tissue in nature and fall within the definition of minor injuries under the Schedule. It argues that there is limited support that her impairments arose as a result of what was a relatively minor accident and that her complaints are not corroborated by the medical records in evidence or by the treatment she seeks. Wawanesa argues that N.S. only missed ten days of work as a hairdresser and that she continues to work with a reduced client load. It relies on a s. 44 examination by Dr. Silver, who found that N.S.’s impairments were properly within the MIG and that her complaints were consistent with the opinions of N.S.’s family physician and treating physicians.
9I agree with Wawanesa. On the evidence, I find the physical injuries documented in the weeks and months after N.S.’s accident fall squarely within the definition of “minor injury” under the Schedule, as they are listed as pain and sprain and strain-type injuries. On the medical records, I find little to suggest that N.S.’s physical injuries and resulting pain are severe enough to require treatment beyond the MIG or are not simply a result of her job as a hairdresser, which requires standing for long periods of time and continuous raising of her arms. Indeed, during assessments, N.S. self-reports that the pain is intermittent and does not affect her daily activities. Her subjective evaluation of the pain only rises to 7/10 at its worst and she finds relief in the form of rest, stretching and, previously, pain medication. Even if I accept that N.S. has some lingering physical pain that can be definitively traced to the accident, I find that she has not demonstrated that recovery from her pain is practically prevented if she is kept within the MIG. On this basis, while I find her complaints of pain are in the documentation, I prefer the opinion of Dr. Silver and agree that it is more in line with the bulk of the evidence.
Psychological and Neurological Impairments
10However, N.S. dedicates a considerable amount of space in submissions to her psychological and neurological issues that she alleges arose from the accident. In turn, she argues that these impairments justify removal from the MIG. To escape the MIG due to psychological impairments, N.S. must show that she has an actual psychological impairment and not just symptomology. A psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically-significant psychological distress. Here, I find that N.S. has provided evidence sufficient to demonstrate that her psychological impairments and potential neurological issues may prevent maximal medical recovery if she is kept within the MIG.
11In support of her position, N.S. relies on the uncontroverted opinion of Dr. Majl, neurologist. In this report, Dr. Majl determined that N.S. suffered, amongst other impairments, a mild closed-head injury, post-traumatic headaches, cervicogenic headaches and chronic pain. In addition, the report found that N.S. exhibits features of depression, difficulties with her memory, focus and concentration. He opined that N.S. has not reached maximal medical recovery from accident and recommended additional evaluations and treatment beyond the MIG.
12The neurological report is unopposed. In response, Wawanesa criticizes the veracity of Dr. Majl’s findings, arguing that the report mentions a number of injuries not found elsewhere in the documentation, that the findings are inconsistent with N.S.’s self-reporting and that even if she does suffer from the alleged impairments, that there is evidence that the impairments did not arise from the accident. Further, Wawanesa takes issue with Dr. Majl’s diagnoses of a closed-head injury, submitting that he did not consider MRI and CT scans from 2017 which revealed a likely Rathke cyst and a bout with meningitis from 30 years ago as the cause of R.N.’s memory loss and neurological issues.
13While I am alive to Wawanesa’s submissions, I find it difficult to ignore Dr. Majl’s professional opinion in the absence of a competing view. On review of the medical documentation and clinical notes provided, I find that there is evidence of psychological complaints (depression, sadness) and potential neurological issues (memory loss, concentration issues, headaches) in N.S. since the accident and it is beyond the scope of my expertise—as well as Wawanesa’s counsel’s—to question Dr. Majl’s findings where Wawanesa has not secured an alternative opinion. Indeed, I found Dr. Majl’s report to be reasonable and measured based on the documents he reviewed, my understanding of N.S.’s history of complaints and the psychological impairments that are being alleged. The neurological diagnoses alone, in my view, are not “minor injuries” and justify treatment beyond the MIG.
14With regards to N.S.’s psychological impairments, the parties disagree over the severity and whether they are related to the accident. In support of her position, N.S. relies on the following: the OCF-18 of Dr. Akram-Pall, psychologist, who diagnosed her with Adjustment Disorder and Specific (isolated) phobias; the clinical notes and records of Dr. Bordman, who conducted the PTSD questionnaire which revealed several issues, including feelings of sadness and depresion, worthlessness and guilt; and, the psychologist report of Dr. Pilowsky, who diagnosed N.S. with Major Depressive Disorder, symptoms of Post-Traumatic Stress Disorder and Somatic Symptoms Disorder with Predominant Pain as a result of the accident and that she does not fit the criteria of what is considered a minor injury and cannot achieve maximal recovery under the MIG.
15In response, Wawanesa cites the report of Dr. Dumitrascu, psychologist, who conducted a s. 44 examination and found that N.S. did not exhibit any significant psychological symptoms which would warrant a DSM-IV diagnosis, any symptoms of PTSD and that her testing results indicated symptom magnification. Dr. Dumitrascu determined that there were no indications N.S. suffered from a psychological condition that warranted treatment beyond the MIG.
16I disagree. I find N.S. has provided sufficient evidence to demonstrate that she suffers from a psychological and/or neurological condition that justifies removal from the MIG. I follow the opinions of Dr. Majl, Dr. Akram-Pall and Dr. Pilowsky and find there is enough medical evidence and diagnoses to suggest on a balance of probabilities that further exploration and, potentially, treatment for the various non-physical issues affecting N.S. post-accident is entirely reasonable. I find the opinions of N.S.’s treating physicians and assessors, cumulatively, overcome the findings of Dr. Dumistrascu, whose report I found to be less reliable. For instance, I find her opinion that N.S. does not demonstrate any clinical symptoms of depression, anxiety or post-traumatic stress in the face of several reports stating the opposite to be somewhat disingenuous. I find her continued reference to N.S.’s menopause as an explanation for her complaints to be overly simplistic. In my view, her report is disproportionately subdued considering the rest of the file.
17As a result, I am satisfied on a balance of probabilities that N.S. has sustained psychological and/or neurological impairments that justify removal from the MIG.
Are the treatment plans reasonable and necessary?
18Having determined that N.S. should be removed from the MIG, it is still necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary. Section 15(1) of the Schedule states that an insurer shall pay for all medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. N.S. bears the burden of proof.
$2,095.28 for chiropractic treatment (physiotherapy and massage)
19I find the treatment plan in the amount of $2,095.28 for chiropractic treatment is not reasonable and necessary. As detailed above, I find, overwhelmingly, that the basis for N.S.’s removal from the MIG is based on her non-physical impairments. Again, N.S.’s physical complaints centre around her pain, which is intermittent and not debilitating, as she is able to work and continue with her activities of daily living. While I accept that N.S. has some lingering pain, I find that she has not demonstrated that the pain is a result of the accident and not from her repetitive job as a hairdresser, which she reported to Dr. Silver. In a similar vein, N.S. self-reports that rest, stretching and at-home exercises provide relief. I find that further facility-based intervention is not reasonable and necessary to achieve this relief.
$2,200.00 for a psychological assessment
20For the same reasons outlined above in discussing N.S.’s removal from the MIG, I find N.S. is entitled to payment for the cost of the psychological assessment. On the evidence before the Tribunal, I found it eminently reasonable and necessary for N.S. to undergo an examination with a professional in order to identify her psychological (and highlight potential neurological) impairments that have plagued her since the accident, to identify potential avenues for treatment and to assess her prognosis for recovery. The cost of the assessment is in line with the Superintendent’s Guideline. Accordingly, I find it reasonable and necessary.
Interest
21As benefits are overdue, it follows that interest is payable pursuant to s. 51.
CONCLUSION
22For the reasons outlined above, I find that N.S. has demonstrated, on a balance of probabilities, that she sustained psychological and/or neurological impairments that justify her removal from the MIG.
23N.S. is entitled to payment for the cost of the psychological assessment as it is reasonable and necessary, as well as applicable interest. N.S. is not entitled to payment for the chiropractic treatment plan for physiotherapy and massage as it is not reasonable and necessary.
Released: January 22, 2020
Jesse A. Boyce, Adjudicator