Released: June 8, 2020
Tribunal File Number: 19-000774/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:
Z. E. A. R.
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Paul DeLuca, Counsel
For the Respondent:
David Raposo, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on February 28, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The 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 medical benefits recommended in treatment and assessment plans as follows;
(a) $5,212.00 for physiotherapy services recommended in a plan dated December 7, 2018;
(b) $5,200.00 for chiropractic services recommended in a plan dated December 7, 2018; and
(c) $4,373.10 for a psychological assessment recommended in a plan dated December 7, 2018?
(iii) Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant suffered psychological injuries which are not included in the minor injury definition, but he is not entitled to the physiotherapy and chiropractic treatment plans.
4The applicant is entitled to the psychological assessment, subject to the funding limit of $2,000.00 for any one assessment.
5No interest is payable as no payments went overdue.
BACKGROUND
6The applicant, a minor, was a rear-seat passenger of a vehicle which was struck from behind. He did not attend at the hospital following the accident, nor did he immediately visit his family physician, Dr. A. Tak. His first visit with Dr. Tak following the accident occurred on December 12, 2016, but the applicant made no accident-related complaints to Dr. Tak during that visit. He saw Dr. Tak again on February 1, 2018, almost a year following the accident, and complained of a being afraid of being in a car.
7The applicant claims his fear of being in a car, a psychological injury, is not included in the minor injury definition. He also claims entitlement to three treatment and assessment plans dated December 7, 2018. The treatment plans consist of chiropractic and physiotherapy treatment (“the physical treatment plans”) and a proposal for a psychological assessment.
THE MINOR INJURY GUIDELINE
8The Minor Injury Guideline (the “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.
9If 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.
PSYCHOLOGICAL INJURIES
10I find the applicant suffered psychological injuries as a result of the accident and, thus, is not subject to the MIG and the $3,500.00 funding limit on treatment.
11In the August 16, 2018 insurer’s examination (“IE”) report, Dr. S. Patel, psychiatrist, found the applicant suffered from psychological injuries as a result of the accident. Dr. Patel interviewed the applicant, performed psychometric testing, and concluded the applicant had improving vehicular anxiety symptoms that cause minimal impact. Dr. Patel also advised that cognitive behaviour therapy would be beneficial if symptoms persist. While Dr. Patel concluded that psychological treatment was not required unless the applicant’s anxiety symptoms persist, I cannot overlook the content of Dr. Patel’s report. It is clear the applicant is diagnosed with vehicular anxiety, despite it being characterized as minor. The diagnosis, together with a recommendation for treatment if symptoms persist, is compelling evidence. Vehicular anxiety is an injury which is not included in the minor injury definition and, therefore, the applicant must not be bound by the MIG, the treatment methodologies it prescribes, and the $3,500.00 funding limit on treatment.
12In addition, Dr. Tak’s February 1, 2018 clinical note states the applicant presented with PTSD associated with the 2016 accident, increased enuresis, flashbacks, and “is terrified of being in car on highway.” While it appears that the applicant’s enuresis was pre-existing and there is a lack of evidence showing it increased following the accident, Dr. Tak’s finding that the applicant is terrified of highway travel is consistent with Dr. Patel’s conclusion in the August 16, 2018 IE report.
13I acknowledge that Dr. Tak referred the applicant to a psychiatric facility but there are no records from the facility to show the applicant followed through on the referral. However, my finding that the applicant suffered from vehicular anxiety as a result of the accident is rooted in Dr. Patel’s IE report.
IS THE PSYCHOLOGICAL ASSESSENT REASONABLE AND NECESSARY?
14I find the psychological assessment to be reasonable and necessary as a result of the accident, subject to the funding limit prescribed by section 25(5)(a) of the Schedule.
15Conducting an IE does not circumvent the applicant’s entitlement to his own assessment. As noted above, Dr. Patel’s August 16, 2016 IE report found the applicant suffers from vehicular anxiety, albeit minor. It also concluded that a psychological assessment is “unnecessary” and “would be redundant” having completed the IE. It is not redundant to permit an applicant to exercise their right to a reasonable and necessary assessment by a medical practitioner of their choosing. In the applicant’s case, where he was found to suffer from psychological injuries, it would be unfair to permit the respondent to examine him by a medical practitioner of its choosing but deny the applicant the same opportunity. This scenario has been previously addressed by the Tribunal in Applicant v. State Farm1 and A.R. v. Aviva.2 I agree with the reasoning in these decisions.
16However, the costs associated with the assessment are not reasonable. Pursuant to section 25(5)(a) of the Schedule, the respondent shall not pay more than a total of $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it. Considering this, the applicant is only entitled to up to $2,000.00 for the assessment and the related report.
ARE THE PHYSICAL TREATMENT PLANS REASONABLE AND NECESSARY?
17I find no evidence the applicant suffered any physical injuries as a result of the accident. As a result, the physical treatment plans are not reasonable and necessary.
18The applicant led no evidence indicating he suffered a physical injury as a result of the accident. Dr. Tak’s clinical notes and records (“CNRs”) refer only to psychological symptoms stemming from the accident and there is no record of any medical referral for physiotherapy or chiropractic treatment. The August 16, 2018 IE report by Dr. Patel expressly states the applicant “sustained no physical injuries.” Additionally, the respondent submits the March 4, 2019 IE report of Dr. S. Baker, physiatrist, who noted the applicant denied any musculoskeletal complaints or ongoing pain symptoms during the assessment. Dr. Baker assessed the applicant and found he suffered no physical impairment as a result of the accident.
19Despite the lack of compelling medical evidence in support of the physical treatment plans, the applicant also claims entitlement to them because, according to him, the respondent failed to comply with its obligations outlined in section 38 of the Schedule.
WERE THE DENIALS COMPLIANT WITH SECTION 38 OF THE SCHEDULE?
20The applicant submits the respondent failed to deny his entitlement to the physical treatment plans pursuant to section 38 of the Schedule. He submits the respondent failed to provide medical and any other reasons for the denial and failed to refer to the MIG. As a result, he claims entitlement to the entirety of the physical treatment plans.
21Section 38(8) requires the respondent to, within 10 business days after receipt of a treatment plan, provide the applicant with notice of the goods and services it agrees to pay for and those which it will not. It also requires the respondent to give medical and other reasons for the decision. The respondent’s reasons are not measured by a standard of perfection.
22In the event the respondent believes the applicant is subject to the MIG, section 38(9) requires the respondent to advise the applicant of this in the notice. Failure to comply with these provisions prohibits the respondent from relying on the MIG as a means of denial, and it also entitles the applicant to the services incurred until the respondent provides a compliant notice.
23I find the respondent is compliant with section 38 and, as a result, the applicant is not statutorily entitled to the treatment plans.
24The respondent’s letter dated January 22, 2019 is compliant with section 38. The physical treatment plans were submitted January 17, 2019 and denied on January 22, 2019, which is within the requisite 10 business days from receipt. The January 22, 2019 letter states the it is the respondent’s opinion that the injuries listed in the treatment and assessment plans are predominantly minor injuries and fall within the MIG and it states that “funding for the following (treatment plans) appears to not be reasonable and necessary.” It also notifies the applicant that the respondent requires an insurer’s examination pursuant to section 44 of the Schedule.
25Further, the March 5, 2019 letter from the respondent, enclosing the IE report of Dr. Baker, is also compliant with the Schedule. It again denies funding for the physical treatment plans, notes the applicant’s injuries are considered minor injuries and are subject to the MIG.
INTEREST
26Pursuant to section 51, interest is only payable on overdue payments. No amounts are payable as the applicant has not incurred the cost of the psychological assessment. As a result, I conclude no payments went overdue and no interest is payable as a result.
CONCLUSION
27I find the applicant suffered psychological injuries which are not included in the minor injury definition.
28The applicant is not entitled to the physical treatment plans because they are not reasonable and necessary for his accident-related injuries.
29The applicant is entitled to the psychological assessment, subject to the funding limit, because it is reasonable and necessary to determine the extent of his psychological injuries and whether any psychological treatment is required.
30No interest is payable as no payments went overdue.
Released: June 8, 2020
___________________________
Brian Norris
Adjudicator
Footnotes
- 16-004375 v State Farm Mutual Automobile Insurance Company, 2017 CanLII 82014 (ON LAT).
- 18-00838 v. Aviva Insurance Company, 2019 CanLII 14396 (ON LAT).