Citation: D.P. v. Echelon Insurance 2020 ONLAT 19-002260/AABS

Released: May 19, 2020

Tribunal File Number: 19-002260/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:

D.P. Applicant

and

Echelon Insurance Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Emily Foreman, Counsel

For the Respondent: Stan Savvateikine, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was injured in automobile accidents on July 23, 2016 and February 12, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").

2The respondent determined the applicant's injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a medical benefit in the amount of $4,337.13 for in-home occupational therapy services recommended by Karyne Lapensee in a treatment plan dated May 22, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $2,190.64 for acupuncture services and other goods as recommended by Alison Wiggers in a treatment plan dated August 3, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $1,338.50 for an in-home social work assessment recommended by Diane Galbraith of Pursuit Health Management in a treatment plan dated April 25, 2017 and denied on July 12, 2017?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4On a balance of probabilities, I find the applicant suffered psychological injuries as a result of the accident. Accordingly, she is not subject to the MIG and the $3,500.00 funding limit.

5The applicant is not entitled to the disputed treatment and assessment plans or interest.

BACKGROUND

6On July 23, 2016, the applicant was the passenger of a vehicle which had a tire rupture while driving on a highway, causing the driver to lose control of the vehicle, cross the centre median, and crash into the guardrail for the oncoming lanes. She was taken by ambulance from the location of the accident to the hospital and x-rayed due to complaints of back pain. She was released after the x-rays showed no abnormality or fracture.

7On February 12, 2017, the applicant was the passenger of a vehicle which, in snowy conditions, struck a tree that fell onto the road. She was taken by ambulance from the location of the accident to the hospital due to complaints of chest and back pain. X-rays revealed the applicant had a pre-existing compression fracture of T11 but she was discharged because the imaging did not show any acute injuries. About a month later, on March 20, 2017, follow-up bone scans on the applicant revealed a fractured sternum.

8On June 22, 2017, the applicant applied for accident benefits for each accident. The respondent accepted the applications and characterized the applicant's injuries are predominantly minor injuries and subject to the MIG and the $3,500.00 funding limit on treatment. The applicant disputes this characterization and claims entitlement to the disputed treatment and assessment plans and interest, which are attributed to the first accident on July 23, 2016.

PRELIMINARY ISSUE

9The respondent submits that, pursuant to section 55(1) of the Schedule, the applicant should be barred from proceeding with her claim for a social work assessment because she failed to attend an insurer's examination ("IE"). The applicant submits she sought to reschedule the IE and shouldn't be punished for the respondent's refusal to reschedule it. I agree.

10I find the respondent has failed to make reasonable efforts to schedule the examination pursuant to section 44(9)(2)i of the Schedule. As a result, the applicant is permitted to proceed with her claim for a social work assessment.

11The respondent has a right to seek an examination of the applicant pursuant to section 44 of the Schedule. Pursuant to section 44(9)(2)i, the respondent shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person.

12I find it is not reasonable to refuse to reschedule an IE simply because the applicant missed one out of several IEs. While it is true the applicant missed a properly scheduled psychology IE on August 17, 2017, she attended three other IEs over the course of her claim, including an orthopaedic IE on August 22, 2017.

13I find it unreasonable to punish the applicant considering the she attended other IEs, only once missed the psychology IE, and requested it be rescheduled. The applicant's participation in three other insurer's examinations and her September 23, 2017 letter requesting a rescheduled psychology IE is evidence she intended to participate in the examination. To-date, the applicant's request for a rescheduled IE has gone unanswered.

THE MINOR INJURY GUIDELINE (MIG)

14The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

15If an insurer deems an applicant's injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

16I find the applicant suffered psychological injuries as a result of the accident. Psychological injuries and impairments are not included in the minor injury definition. Thus, she is not subject to the MIG and the $3,500.00 funding limit on treatment.

17The applicant submits an assessment by Dr. M. MacDonald, psychologist, dated June 11, 2019. Dr. MacDonald assessed the applicant via interview and psychometric testing and diagnosed her with somatic symptom disorder, major depressive disorder, and post-traumatic stress disorder and recommended prolonged psychological and rehabilitative treatments to help cope with her impairments. While Dr. MacDonald's various diagnoses relied heavily on the applicant's self-reports, which the respondent submits are contradictory to her family physician's clinical notes and records, the diagnoses are rationally supported by the interview and psychometric testing results. Dr. MacDonald expressly stated that the 2016 and 2017 accidents materially contributed to applicant's psychological injuries.

18The MacDonald psychological assessment report is uncontested. The respondent failed to reschedule the psychology IE and, consequently, submits no compelling evidence to refute Dr. MacDonald's opinion. While its concerns over the quality of Dr MacDonald's report have some merit, the concerns hold no weight without any medical opinion to counter Dr. MacDonald's diagnosis.

THE DISPUTED TREATMENT PLANS

The in-home social work assessment

19Despite Dr. MacDonald's opinion and recommendations, I find the social work assessment is not reasonable and necessary. The applicant has provided no compelling medical evidence that she requires an in-home social work assessment.

20There is no indication in the evidence to show that the applicant requires assistance with identifying supports to facilitate recovery, as suggested in the treatment plan. Likewise, there is no evidence showing the social worker is trained to identify and treat psychological injuries such as those diagnosed by Dr. MacDonald. To me, the evidence shows the applicant had access to supports such as government-funded employment and disability services as well as a community health centre.

21In addition, there is no evidence the applicant requires an in-home assessment. The applicant has resumed vehicular travel and attended various other out-of-home assessments.

The acupuncture treatment plan

22Upon review of the evidence and submissions, I find that, on a balance of probabilities, the applicant is not entitled to the acupuncture treatment plan.

23The applicant provides no compelling opinion or evidence to support entitlement to the acupuncture treatment plan. In her submissions, she echoes the goals stated in the treatment plan and claims she is entitled to it plan on account of her chronic pain and musculoligamentous pain as documented in Dr. Segueira's June 8, 2018 report. However, as submitted by the respondent, Dr. Segueira recommended low impact exercise and activity. Specifically, Dr. Segueira recommended pool-based exercises, flexibility, core strength, aerobic and muscular conditioning. Dr. Segueira made no recommendation for acupuncture.

24I find no evidence to support the need for the devices proposed together with the acupuncture treatment plan. The plan includes fees for a tens machine, biofreeze gel, and kinesiology tape. No evidence was led and no submissions were made in favour of these goods.

25As submitted by the respondent, Dr. G. Jaroszynski, orthopaedic surgeon, assessed the applicant on August 22, 2017 and found her accident-related injuries have "long since healed" and her ongoing pain symptoms are predominantly due to pre-existing degenerative changes. Dr. Jaroszynski determined the applicant had no need for any formal or informal treatment as a result of the accident-related musculoskeletal injuries. Dr. Jaroszynski assessed the applicant again on July 30, 2018 and maintained the opinion that the applicant's current presentation is not due to any ongoing accident-related injuries within the musculoskeletal system. After reviewing Dr. Segueira's report, Dr. Jaroszynski completed an addendum report dated October 1, 2018 which noted his opinions and conclusions did not change.

The in-home occupational therapy treatment plan

26I find the applicant is not entitled to the in-home occupational therapy treatment plan because it is not reasonable and necessary for her accident-related injuries.

27As previously noted, the applicant makes no submissions as to why in-home care, which has additional travel costs, is necessary instead of in-clinic care. The evidence shows the applicant has resumed driving and has attended other out-of-home assessments.

28There is no compelling contemporaneous evidence to support the in-home occupational treatment plan. The treatment plan aims to reduce the applicant's pain, optimize safety and independence, ease with daily activities of life including personal care, leisure, and productivity. The applicant relies solely on the opinion and recommendation of the author of the treatment plan, occupational therapist K. Lapansee. The applicant submits the July 13, 2017 report supports her position but does not explain how it supports the position. This applicant fails to appreciate that the recommendations in K. Lapansee's report are from about a year prior to the submission of the proposed treatment plan. In any event, the Lapansee report from a year prior noted the applicant reported independence with personal care activities when her pain is managed and difficulties on "bad days" which were reported to occur "a few times per week". During range of motion tests, the applicant was observed to exhibit a range within functional limits for all areas of the body, but for the lumbar area, which noted her range was reduced to three-quarters. Occasional self-reported difficulties with personal care activities and a finding of reduced range of motion in the lumbar spine from a year prior does not entitle the applicant to the in-home treatment proposed in the disputed treatment plan, considering the goals it proposes.

29The examination by occupational therapist S. Abraham, found similar results to K. Lapansee but concluded that the proposed occupational therapy treatment plan was not reasonable and necessary for the applicant's accident-related injuries. S. Abraham's report also noted the applicant reported she was able to perform her personal care activities with minor difficulties, and concluded the applicant also demonstrated the ability to independently manage her personal care activities. The physical testing conducted during the Abraham assessment showed the applicant's range of motion was within functional limits for all areas of her body, but for her lumbar area which was significantly reduced during flexion and the applicant declined to attempt the remaining lumbar tests. There are no submissions or evidence before to explain how the proposed in-home occupational therapy sessions is required as a result of the applicant's lumbar pain and decreased lumbar range of motion.

INTEREST

30Pursuant to section 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. The disputed treatment plans are not payable because they are not reasonable and necessary. The applicant is not entitled to interest as a result.

CONCLUSION

31Upon review of the submissions and medical evidence, I find the applicant suffered psychological injuries as a result of the accident. Such injuries are not included within the definition of a minor injury and are not subject to the funding limit prescribed by section 18 of the Schedule.

32The disputed treatment plans are not payable because they are not reasonable and necessary for the applicant's accident-related injuries.

33No interest is owed.