Released Date: 03/16/2020
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.R.]
Applicant
and
Coseco Insurance
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Sandeep Johal, Adjudicator
APPEARANCES:
Counsel for the Applicant:
Tanjoyt Deol
Counsel for the Respondent:
Emily Schatzker
Heard in writing on:
October 21, 2019
OVERVIEW
1The applicant was injured in an automobile accident on June 16, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant was a driver of a vehicle that was rear-ended by another vehicle. As a result of the accident, the applicant sustained injuries including the muscle and tendon at neck level, a sprain and strain of the thoracic spine, lumbar spine and sacroiliac joint, and anxiety disorders.2
3The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.
ISSUES TO BE DECIDED
4The following are the issues to be decided:
(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?
(ii) Is the respondent entitled to be reimbursed in the amount of $250.00 in respect of an overpayment of a June 21, 2017 assessment conducted by chiropractor S. Sardani?
(iii) If the answer to issue (i) is no, then:
(a) Is the applicant entitled to receive a medical benefit in the amount of $3,696.70 for physiotherapy treatment, recommended in a treatment plan by MacKenzie Medical, dated June 22, 2017 and denied on July 7, 2017?
(b) Is the applicant entitled to receive a medical benefit in the amount of $1,384.70 for physiotherapy treatment, recommended in a treatment plan by MacKenzie Medical, dated December 14, 2017 and denied on December 20, 2017?
(c) Is the applicant entitled to receive a medical benefit in the amount of $1,977.05 for physiotherapy treatment, recommended in a treatment plan by MacKenzie Medical, dated October 25, 2017 and denied on November 6, 2017?
(d) Is the applicant entitled to payments for the cost of examination in the amount of $2,669.50 for a psychological assessment recommended by Elite Specialist Group in a treatment plan submitted on February 23, 2018 and denied on March 9, 2018?
(e) Is the applicant entitled to be reimbursed in the amount of $200.00 for the cost of a treatment plan submitted on January 16, 2018 and denied on February 1, 2018?
(f) Is the applicant entitled to interest on any overdue payment of benefits?
5In the applicant’s submissions, she withdrew issue number (iii) (a) above and therefore the issue of a medical benefit in the amount of $3,696.70 will not be addressed as part of this hearing.
6In her submissions, the applicant raises the issue of improper denials on the part of the respondent, contrary to s. 38(8) of the Schedule and that will also be addressed as part of this decision.
7After reviewing the parties’ submissions, I find that issue (ii) above should be changed to ask whether the respondent is entitled to a repayment of $50.00 for the overpayment of an invoice submitted by way of an OCF-21 (Auto Insurance Standard Invoice).
RESULT
8Based on the totality of the evidence before me, I find:
(i) the applicant sustained predominately minor injuries as defined in the Schedule, she is subject to treatment within the MIG, and as a result of the MIG limits being exhausted, there is no need to determine whether the treatment plans or the cost of examination is reasonable and necessary.
(ii) the respondent is not entitled to a repayment in the amount of $50.00 for the overpayment of an invoice submitted on an OCF-21; and
(iii) as there are no outstanding benefits, the applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline
9The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3(1) of the Schedule as “one or more of a sprain, strain, 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(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
10The applicant bears the onus to establish her entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.3
11The applicant’s Disability Certificate (OCF-3),4 completed by chiropractor Salar Sardari, notes that the applicant has an injury of the muscle and tendon at neck level, injury to the rotator cuff of the shoulder, a sprain and strain of thoracic spine, lumbar spine, and the sacroiliac joint. Headache, anxiety disorders, stress, restlessness and agitation, dizziness and giddiness, muscle strain and nervousness. The OCF-3 notes that the applicant’s disability is expected to last for 9-12 weeks.
12I find the injuries as listed in the OCF-3 are within the definition of the MIG and I do not place any weight on the psychological injuries listed in the OCF-3 as it would be beyond the scope of a chiropractor to opine on psychological impairments.
13However, based on the report of Dr. Shaul, the applicant submits that as a result of the accident she suffered psychological impairments, something not within the definition of the MIG and that, as a result, she should not be treated within the MIG.
Does the applicant have a psychological injury to remove her from the MIG?
14For the following reasons, I find that the applicant has not proven on a balance of probabilities that she has a psychological injury that would take her out of the MIG.
15The applicant relies upon the psychological report dated July 15, 2019 from Dr. Shaul, psychologist.5 In his report, Dr. Shaul diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as with Specific Phobia (travelling in and around a vehicle).6
16I place little weight on this report given that the psychological testing done does not support Dr. Shaul’s conclusions.
17The respondent submits that the testing conducted in Dr. Shaul’s report from the BDI-II, the BAI and the SCL-90-R tests all revealed that the applicant suffered symptoms of depression in the minimal range and mild anxiety. On the SCL-90-R, the applicant only endorsed her concerns as a “little bit distressing.”7
18The respondent further submits that the test results were disregarded over the clinical interview with the applicant to arrive at a diagnosis. As a result, the respondent argues, Dr. Shaul’s conclusions are not indicative of the applicant’s true psychological status.
19I agree. In my opinion, the psychological test scores cannot be disregarded in favour of the applicant’s self-reporting without a justification as to why the psychologist finds the scores unreliable. Dr. Shaul’s report provides no explanation to disregard the test scores which found the applicant to have minimal depression, minimal anxiety and psychological and physical symptoms that were “a little distressing” as opposed to extremely distressing, quite a bit distressing or moderately distressing.
20As a result, I find that Dr. Shaul’s conclusions are not supported by the test results and, accordingly I place little weight on the report.
21I have not been directed to any other notations of psychological concerns from the applicant’s family doctor or other medical practitioners who have treated the applicant on an ongoing basis in order to support the applicant’s submission that she has a psychological injury that would take her out of the MIG.
22The applicant submits that the OCF-3 Disability Certificate identified psychological impairments of anxiety, nervousness and sleep disorders and those along with the psychological diagnosis by Dr. Shaul demonstrates that the applicant should not be treated within the MIG. However, as stated above, I place little weight on that evidence of Dr. Shaul’s report and the impairments listed in the OCF-3 were recorded by a chiropractor. It is not within a chiropractor’s scope of practice to comment on psychological impairments or provide a psychological diagnosis.
23The respondent submits that the applicant has seen her family doctor, Dr. Siddiqui on several occasions since the accident and there is no mention of any psychological distress reported her doctor. According to the respondent, If the applicant was experiencing psychological distress or ongoing pain beyond the mild/minimal range, she would have consulted her family doctor for medication or a referral as she has done with some of her other medical concerns.
24The respondent further submits that the applicant provided Dr. Shaul’s psychological report the day before productions were due and as a result, the respondent did not have an opportunity to provide a responding report.
25The respondent relies upon the Tribunal case of 17-004519 v. Certas8 where the claimant in that matter relied upon a “provisional diagnosis” of a psychological condition by a person whose qualifications were not set out and this was held to be “too weak” to meet the onus to prove the applicant should be removed from the MIG.9 The respondent submits it took a similar position to deny the treatment plan based on the pre-screen interview that was not authored by Dr. Shaul but by a psychotherapist whose qualifications were not listed and the pre-screen interview contained uncorroborated details regarding the applicant’s condition.
26The onus is on the applicant to prove on a balance of probabilities and not on the respondent to disprove. I have not been satisfied on a balance of probabilities that the applicant has psychological impairments or a psychological diagnosis that would remove her from the MIG.
27As I have found that the applicant has not met her onus to show her injuries to be outside of the MIG, there is no need for me to conduct an analysis of whether the remaining treatment plans or the cost of examination for a psychological assessment is reasonable and necessary.
28I will now turn to discuss whether benefits were improperly denied contrary to s. 38(8) of the Schedule.
Did the respondent provide improper denials?
29I do not find the respondent’s denials to be improper or contrary to s. 38(8) of the Schedule for the following reasons.
30The applicant submits that the respondent did not arrange for an insurer’s examination (“IE”) when denying the treatment plans and that the denials did not provide any medical reasons for the denials.
31The respondent submits that it reviewed the treatment plans and stated that based on the medical information provided to date, the applicant’s injuries would appear to be within the definition of the MIG and that the psychological impairments were identified by a chiropractor who is not qualified to diagnose psychological impairments. The respondent requested clinical notes and records from the applicant’s family physician and made clear that, upon receipt, it would review that information to determine whether an IE is required.10
32I agree with the respondent: the requirement to have the applicant attend an IE is at the respondent’s option and is not mandatory.11 A review of the denial letter dated November 6, 2017 also notes that, based on the treatment plan submitted, the applicant has soft-tissue injuries that would fall within the MIG and the psychological impairments were noted by a chiropractor, who is not qualified to determine psychological impairments.
33I do not find the denials to be lacking medical reasons or that the applicant has not been provided any details about her condition. It is clear based on a review of the letters that the treatment plan lists soft-tissue injuries that would appear to be within the definition of the MIG, which the respondent has noted, and the respondent makes a request for further medical documentation after which it would be in a position to determine whether an IE is required.
Is the respondent entitled to a reimbursement of $50 for the overpayment on an invoice submitted by way of an OCF-21?
34The respondent is not entitled to a reimbursement for the $50.00 overpayment on an invoice for the following reasons.
35The respondent submits the applicant has collateral benefits and it was not aware that the collateral benefits insurer would be paying part of the cost of the $200.00 disability certificate.
36As a result, the respondent submits that this was a wilful misrepresentation on the part of the applicant and, in accordance with s. 52 of the Schedule, the respondent seeks a repayment.
37The onus is on the respondent to prove the applicant made a wilful misrepresentation which in my opinion is a high threshold. The respondent has not directed me to any evidence that the applicant’s conduct can be considered a wilful misrepresentation. The respondent has not persuaded me on a balance of probabilities and furthermore, s. 52(2) of the Schedule requires the respondent to give the applicant notice of the amount that is required to be repaid. The respondent has not directed me to any evidence as to whether s. 52 of the Schedule was complied with in order to seek a repayment. As a result, I find that the respondent has not satisfied its onus for a repayment and therefore its request is denied.
ORDER
38As a result of the above and on a balance or probabilities, I find that:
i. the applicant sustained predominately minor injuries as defined in the Schedule, she is subject to treatment within the MIG, and as a result of the MIG limits being exhausted, there is no need to determine whether the treatment plans or the cost of examination is reasonable and necessary.
ii. the respondent is not entitled to a repayment in the amount of $50.00 for the overpayment of an invoice submitted on an OCF-21; and
iii. as there are no outstanding benefits, the applicant is not entitled to interest.
Released: March 16, 2020
Sandeep Johal
Adjudicator
Footnotes
- O. Reg. 34/10.
- Disability Certificate (OCF-3) dated June 21, 2017 at Tab C of the Applicant’s Submissions.
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
- Applicant’s Written Submissions Part 1 at Tab C.
- Ibid at Tab E.
- Ibid at Tab E, page 9.
- Ibid at page 9.
- 2018 CanLII 61152 (ON LAT)
- Ibid at para’s 29-30.
- Applicants Written Submissions Part 1, Tab G. Respondent’s denial letter dated December 10, 2017.
- See section 38(10) of the Schedule.