Released Date: 04/27/2020
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:
J.T.
Applicant
and
Cayuga Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Applicant:
Charles Flaherty, Counsel
For the Respondent:
Bruce Keay, Counsel
HEARD: In Writing
Heard by way of written submissions
OVERVIEW
1On August 3, 2016, the applicant, J.T., was involved in a motor vehicle accident.
2The applicant applied for certain medical benefits that were denied by the respondent Cayuga Mutual Insurance Company. One of the issues in dispute was whether the applicant’s injuries were predominantly minor injuries, and thus, treatment of them fell within the Minor Injury Guideline (the “MIG”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
3The applicant appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).
4During the course of the proceedings before the Tribunal, the parties resolved several issues and only two issues remain outstanding for the Tribunal to decide in this written hearing.
ISSUES IN DISPUTE
5The issues in dispute to be decided are:
(i) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
(ii) Is the cost of the OCF-3 disability certificate in the amount of $200.00 payable out of the applicant’s medical/rehabilitation policy limits, or should it be an expense to be covered by the respondent?
RESULT
6Based upon a review of the totality of the evidence presented, I find that:
(i) The applicant is not entitled to an award under Regulation 664; and
(ii) The cost of the OCF-3 disability certificate in the amount of $200.00 is an expense that should be covered by the respondent.
ANALYSIS
A. Is the applicant entitled to a special award?
7I find that the evidence establishes that the applicant is not entitled to a special award.
8The applicant submits that the respondent acted unreasonably by requiring that she undergo an independent examination (“IE”) before deciding whether to remove her from the MIG. The applicant asserts that there was ample medical evidence documenting her pre-existing and post-accident psychological condition/impairment by the earliest November 2016 and by the latest May 2018. As a result, the applicant should have been taken out of the MIG without the need for an IE, specifically, a psychological assessment. The applicant asserts the respondent’s delay negatively impacted her ability to have or negotiate further treatment to assist in managing her psychological impairments caused and exacerbated by the accident. She asserts a special award is warranted due to the respondent’s unreasonable, frivolous and vexatious behaviour and ongoing bad faith. I find that the IE was reasonable and therefore do not agree with the applicant’s claim.
9I note the relevant sections of the Schedule:
a. Section 44(1) states, “For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.”
b. Section 44(9)2 states, “If the attendance of the insured person is required (in respect of the examination)… the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.”
10To assist in my analysis, I consider the relevant facts.
11The applicant identified that, prior to the accident, she was suffering from depression and anxiety and taking medication for her mental health. She otherwise indicated that she had no pre-existing medical or psychological issues. Her family physician, Dr. Richard Tytus, notes in his clinical notes and records that post-accident her anxiety has increased.
12On October 5, 2016, Dr. Tytus completed an OCF-3 disability certificate with the injuries listed as low back strain, whiplash, post traumatic stress and insomnia. The anticipated duration of the disability was 9 to 12 weeks. Dr. Tytus answered “no” to the question “prior to the accident did the applicant have any condition or injury that affected her ability to perform the activities listed in part 6.” Upon receipt of this OCF-3, the respondent commenced payment of a non-earner benefit.
13On October 27, 2016, the applicant underwent a physiotherapy assessment and a report, dated November 13, 2016, was prepared by physiotherapist Jake Tumber. The report noted that the applicant complains of headaches, neck pain, thoracic pain, low back pain, anxiety and sensitivity to sunlight. In addition, the report noted that she is impaired in her daily functioning and is taking medication for her depression. The clinical impression is thoracic spine sprain, WAD II, headaches, lumbar spine sprain and recommendations include engaging in graded exercise program of cervical, lumbar and thoracic ROM and strengthening, manual and massage therapy to relieve spinal pain, pain modalities for home. The report noted that given her history of anxiety and depression, she may require treatment outside of the MIG. I note that Mr. Tumber is not a mental health professional and his objective examination was only of the applicant’s physical symptoms.
14On March 20, 2017, per a referral by Dr. Tytus, the applicant went for counselling with Catherine Doan, social worker. Ms. Doan’s clinical notes state that the applicant “reported that her depression seems worse since being involved in an MVA in August.” The clinical notes state that the applicant reports higher anxiety when travelling, hypervigilance, startles easily and avoids travel as much as possible. I note that Ms. Doan’s credentials are not provided or attached to her clinical notes.
15On November 6, 2017, Dr. Tytus referred the applicant to Dr. Amber Smith, psychologist, for post traumatic stress secondary to the accident. The applicant advised that she had a phone conversation with Dr. Smith but no face to face.
16On December 21, 2017, Dr. Tytus noted that the applicant had three IEs with regards to non-earner benefits, and did not attend due to car passenger phobia. He stressed to her the importance of seeing a psychologist and attending specialist appointments. As a result of the applicant failing to attend the three IEs, her non-earner benefits were stopped.
17On March 13, 2018, Dr. Smith submitted a treatment plan for a psychological assessment identifying that the applicant reported back, shoulder and neck pain, headaches, anxiety in a vehicle, disturbed sleep with nightmares, low mood, irritability and reduced functioning in all domains. Dr. Smith stated that the applicant is suffering with symptoms suggestive of post-traumatic disorder and depression, and at minimum, she is having difficulty adjusting to new pain and limitations. Dr. Smith stated that her injuries are not treatable within the MIG.
18In response, on March 28, 2018, the respondent advised that an IE psychological assessment was required to determine whether the applicant’s injuries fell within the MIG as the medical documentation indicated that her injuries included sprains and strains which are classified as minor injuries. The respondent further noted that the applicant’s last treatment incurred on January 20, 2017, and nothing had been submitted to the insurer in the intervening fourteen months, including, treatment plans or additional medical information. The notice of examination advised that she was to be assessed by Dr. Monique Costa El-Hage, psychologist, on April 12, 2018. The respondent also requested a copy of the clinical notes and records of Dr. Tytus from August 2015 to present.
19The applicant attended Dr. El-Hage’s office but was unable to complete the assessment. The applicant asserts that she was unable to complete the assessment due to increased anxiety and becoming highly distressed and emotional during the assessment.
20The examination was rescheduled for completion on June 7, 2018, and for a third time to August 24, 2018. The applicant did not attend. She took the position that the IE was not required.
21The applicant filed the instant application with the Tribunal with respect to the MIG determination and other benefits. At the case conference, the applicant agreed to complete the IE and the respondent agreed to reschedule.
22On November 28, 2018, the applicant attended the psychological IE with Dr. Fabio Salerno, psychologist, who prepared the psychological report dated December 3, 2018. Dr. Salerno found that the applicant “sustained a mental injury” and that she “exhibits a constellation of anxiety symptoms with respect to traveling as a passenger in a motor vehicle which meet the DSM-5 diagnostic criteria for Adjustment Disorder with Anxiety”. He concluded that she did not fall within the MIG. Dr. Salerno further stated according to the applicant’s reporting and the file documentation, it is most likely that she was still symptomatic for major depression and generalized anxiety disorder at the time of the accident. He opined that the accident exacerbated these pre-accident symptoms. Given Dr. Salerno’s report, the respondent removed the applicant from the MIG and approved her treatment plan for a psychological assessment.
23The applicant’s position has always been that an IE was not reasonably necessary given the medical evidence already provided to the respondent. The applicant stated that her medical records, including the treatment plan of Dr. Smith, the physiotherapy assessment report, the OCF-3 of Dr. Tytus and her pre-accident prescription for anxiety medication provided ample medical evidence that she had a non-MIG injury.
24I find that the respondent acted fairly and reasonably in adjusting its position and in keeping with the purpose of the Schedule once it reviewed the IE report. I further find that the respondent’s position with regards to requiring an IE was also in keeping with the Schedule. Section 44 provides for an IE for the purposes of assisting an insurer to determine if an insured person is entitled to a benefit but not more often than is reasonably necessary. The evidence before the Tribunal is that the applicant’s last treatment incurred was on January 20, 2017, and no further treatment plans were submitted to the respondent and no additional medical information was provided. In fact, in the intervening fourteen months, the respondent had closed the applicant’s claim file and noted that the applicant had been treated in the MIG and discharged. It was a reasonable position for the respondent to require an IE given the lapsed time, and I do not find that the respondent unreasonably withheld or delayed payments.
25In addition, the evidence before the Tribunal is that when the respondent first attempted to arrange the IE in April 2018, almost two years post accident, it was the first IE assessment that the respondent arranged for the applicant with regards to a MIG determination. I do not believe that one assessment in order to make a MIG determination is more often than is reasonably necessary.
26Further, I do not find persuasive the applicant’s argument that the file information provided to the respondent was sufficient for the respondent to take the applicant out of the MIG. I further disagree that the respondent had an awareness of the need for benefits early on and caused delays. The applicant asserts that the respondent was well aware as early as November 2016 of the diagnosis of a psychological impairment as evidenced by the adjustor’s log note on October 4, 2016 identifying “pre-mva RX for anxiety”, and a November 2, 2016 log note stating “F43 injury code – reaction to severe stress and adjustment disorder.” I am not persuaded in this regard and note that the applicant had not provided sufficient evidence that there was a diagnosis of a psychological injury/impairment. I am not persuaded that the applicant’s family doctor, physiotherapist or social worker were qualified to make any mental health diagnosis. I find that the respondent was acting reasonably when it required that the applicant be assessed by a mental health professional, especially given the fourteen intervening months. The respondent was entitled to assess whether the applicant’s injuries were minor and subject to the MIG limits.
27Further, the applicant asserts that the respondent knew or ought to have known that her psychological impairment prevented her from completing the assessment which would be compelling evidence of a pre-existing impairment that would prevent recovery in the MIG, or alternatively, an accident related psychological impairment, both of which should have resulted in a removal from the MIG. Again, I note that an insurer is permitted where reasonable to seek an IE. I find that the respondent acted in good faith when it maintained that an IE was required to allow for a mental health practitioner to make an applicable diagnosis and to determine the applicability of the MIG.
28I further do not find persuasive the applicant’s argument that Dr. Salerno came to his opinion, in part, based upon the applicant’s reporting and the medical records, and thus, the respondent could have done the same without the need for an IE. I find that this assertion neglects the significant role that Dr. Salerno’s actual examination and observations of the applicant played in the diagnosis. Dr. Salerno performed various psychometric tests, including the Beck Anxiety Inventory, the Beck Depression Inventory, the Pain Catastrophizing Scale and Pain Patient Profile, which assisted in making a diagnosis from a mental health perspective. He also made observations of the applicant that assisted him in assessing her needs.
29I agree with the respondent’s assertion that any delay in making a MIG determination or payment of the proposed treatment plan of Dr. Smith was caused by the applicant. The applicant was given three chances to complete the IE assessment and failed to do so. Instead, the applicant continued to maintain that an assessment was unnecessary. I have found otherwise. I note that after the IE was completed and the diagnosis given by Dr. Salerno, the respondent took the applicant out of the MIG and approved the proposed treatment plan.
30The applicant has not persuaded me that the respondent acted in a manner that was unreasonable, frivolous and vexatious and in bad faith.
31I do not find that the respondent withheld or delayed payments. Accordingly, I conclude that a special award is not warranted.
B. Is the cost of the OCF-3 disability certificate payable out of the applicant’s medical/rehabilitation policy limits?
32I find that the cost of the OCF-3 in the amount of $200.00 is not payable out of the applicant’s medical/rehabilitation policy limits. I find the respondent is liable to pay the cost.
33Section 25 of the Schedule provides that the insurer shall pay the reasonable fees charged for preparing a disability certificate if required under section 37 in determination of continuing entitlement to specified benefits.
34I note that the applicant was receiving a non-earner benefit and on August 23, 2017 the respondent asked for a new disability certificate to help determine her ongoing entitlement to the benefit. In response, on September 28, 2017, Dorina Rusu, the nurse practitioner at Dr. Tytus’ office, completed an updated OCF-3 disability certificate (the “September 28^th^ OCF-3”), advising that the applicant did not suffer a complete inability to carry on a normal life. The September 28^th^ OCF-3 identified persistent symptoms of back pain, burning, tingling and identified ODSP-depression. The respondent paid the fee for the disability certificate under an “adjuster expense” as per section 25(1) of the Schedule.
35Given that the applicant did not suffer a complete inability to carry on a normal life, the respondent stopped payment of the non-earner benefit.
36On November 8, 2017, Dr. Tytus completed a further OCF-3 disability certificate (the “November 8^th^ OCF-3”), advising that the applicant continued to have a complete inability to carry on a normal life identifying the applicant’s “persistent physical and psychological symptoms” and noted that referrals were pending with a “physiatrist, neurosurgeon and psychologist.” The respondent paid for the disability certificate but took the position that it did not request the second OCF-3 to be completed for the purposes of section 21, 36 or 37, and therefore, it was an expense to be deducted from the applicant’s medical rehabilitation benefits.
37The respondent submits that it is evident that the applicant was not satisfied with the opinion of Ms. Rusu regarding her entitlement to the non-earner benefit and the consequent termination of her non-earner benefit, and thus, she provided a further disability certificate. The respondent points out that the description of the applicant’s injuries at Part 5 of both OCF-3s are identical, the information provided at Part 8 is identical, and the answer to questions in Part 6 are identical with the exception of the complete inability test. Further, there is no evidence that the applicant’s physical or psychological condition changed in any material way in the span of about seven weeks. Instead, the respondent asserts that the applicant sought the later OCF-3 in order to challenge the insurer’s position with respect to her entitlement to a non-earner benefit. The respondent submits that she is free to do so, but she should bear that cost.
38In response, the applicant submits that a disability certificate does not relate to medical/rehabilitation benefits and is not a medical/rehabilitation cost. She submits that although two separate OCF-3s were provided to the respondent in a short period of time, the latter provided updated information regarding new impairments and referrals for treatment and investigations into her injuries. The applicant points out that an OCF-3 is also required to notify or update the insurer on the impairments or injuries of the applicant and her injuries had changed according to her family doctor. She submits the November 8^th^ OCF-3 was provided for that reason. The applicant submits that a new disability certificate is an appropriate way to notify an insurer of new impairments.
39I agree with the position of the applicant and find that the disability certificate is a method of notifying or updating an insurer on impairments or injuries. The applicant did just that. Her family doctor believed that her injuries had changed and provided an update. This was an appropriate method to notify the insurer so that it could decide whether to schedule IEs and in order to determine entitlement to any benefits under the Schedule.
40I am not persuaded by the respondent’s assertion that there were only trivial differences between the two OCF-3s which would not have affected the respondent’s understanding of the applicant’s injuries or adjustment of the claim. The November 8^th^ OCF-3 made significant changes in advising that the applicant suffered a complete inability to carry on a normal life, had persistent physical and psychological symptoms and that medical referrals were pending with a physiatrist, neurosurgeon and psychologist to assist the applicant with her ongoing treatment.
41Given the above, I find that the cost of the disability should be paid for by the respondent.
CONCLUSION
42After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I find that:
(i) The applicant is not entitled to an award under Regulation 664; and
(ii) The cost of the OCF-3 disability certificate in the amount of $200.00 is an expense that should be covered by the respondent.
Released: April 27, 2020
___________________________
Rupinder Hans, Adjudicator