Citation: M.S.W. vs. Aviva General Insurance, 2020 ONLAT 18-010575/AABS

Released Date: 06/18/2020

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:

M.S.W.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Maria Papadopolous

For the Respondent:

Kathleen Mertes

HEARD:

Via written submissions

OVERVIEW

1M.S.W. was involved in an automobile accident on August 25, 2016 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Aviva denied her claims on the basis that it believed her accident-related injuries were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). M.S.W. disagreed, submitting that her psychological diagnosis and chronic pain justifies treatment beyond the MIG. M.S.W. then submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2The following issues are in dispute:

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

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,995.33, for psychological treatment, recommended by Brampton Civic Care Centre, in a treatment plan (OCF-18) submitted on December 2, 2016, and denied on December 12, 2016?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,454.30 for chiropractic treatment recommended by Brampton Civic Care Centre, in a treatment plan (OCF-18) submitted on January 19, 2017 and denied on February 1, 2017?

iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,326.28 for chiropractic treatment recommended by Brampton Civic Care Centre, in a treatment plan (OCF-18) submitted on March 6, 2017, and denied on March 21, 2017?

v. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,754.08 for chiropractic treatment recommended by Brampton Civic Care Centre, in a treatment plan (OCF-18) submitted on May 11, 2017 and denied on May 24, 2017?

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

RESULT

3I find M.S.W. sustained accident-related psychological impairments that justify removal from the MIG, as they are not minor injuries as defined by the Schedule. On this basis, M.S.W. is entitled to the psychological assessment as it is reasonable and necessary. Interest applies to any overdue benefits incurred.

4I find M.S.W. is not entitled to payment for the remaining treatment plans as they are not reasonable and necessary.

ANALYSIS

Applicability of the MIG

5The 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, although an applicant may escape the MIG if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG of if they prove that psychological impairments or chronic pain cause functional impairment that requires treatment outside of the MIG. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities.

6M.S.W. submits that her chronic pain and psychological diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood justify treatment beyond the MIG. In support of her position, she relies on the OCF-3 dated August 22, 2016, the clinical notes of her family physician Dr. Okafor, the treatment records of Brampton Civic Care, the psychological pre-screen report from Dr. Raghu-Raman and the s. 44 psychological IE report of Dr. Zakzanis.

7In response, Aviva submits that M.S.W. has not satisfied her burden to prove that her accident-related impairments justify treatment beyond the MIG. It relies on the s. 44 IE reports of Dr. Belfon, G.P. and Dr. Zakzanis, who both determined that M.S.W. sustained predominantly minor injuries as a result of the accident and that she had achieved maximal medical recovery. Aviva submits that there is no compelling evidence that M.S.W.’s back pain has become chronic in nature or is functionally disabling and there has been no diagnosis of same. Further, while it acknowledges Dr. Zakzanis’s psychological diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, Aviva submits that the report finds that M.S.W.’s impairments are still “minor” because she expressly denied her need for treatment and reported that she has no functional impairment.

8First, with regards to M.S.W.’s physical impairments, I find limited evidence to suggest that her accident-related impairments are not predominantly minor injuries that are treatable within the MIG. The physical impairments listed in the OCF-3 all fall squarely within the definition of minor injury under the Schedule, as they are identified as sprain and strains of the cervical, thoracic and lumbar spine, sprain and strain of the shoulder and hip, headaches and neck pain.

9On this basis, I agree with Dr. Belfon’s finding in the s. 44 IE report that M.S.W.’s physical impairments are uncomplicated soft tissue injuries that are primarily sprain and strains, and that there is no evidence of a pre-existing impairment that would prevent maximal medical recovery under the MIG. The clinical notes of Dr. Okafor, which are quite voluminous, also indicate unremarkable low back examinations and back testing scores. Dr. Okafor’s notes do not provide any referral to specialists, do not indicate any issues with M.S.W.’s function and do not request any diagnostic testing to investigate the complaints of pain.

10In submissions, M.S.W. submits that her back pain as a result of the accident has become chronic pain that has remained ongoing and prevented her from achieving maximum recovery under the MIG. As evidence of this, she cites a clinical notation of “chronic back pain – muscular” from December 2016/January 2017 as compelling evidence that she suffers from chronic pain.

11With respect, the bulk of the medical evidence does not support a diagnosis of chronic pain. While a diagnosis of chronic pain syndrome is not required for removal from the MIG, the presence of intermittent pain is not enough to warrant further treatment. There must be evidence of severe or functionally-disabling pain that is consistent and that affects day-to-day or work function. A single notation with a “chronic” modifier does not remove an individual from the MIG in the absence of any evidence of functional disability as a result of that pain. None of M.S.W.’s treating practitioners opine on chronic pain and the Brampton Civic Care attendance notes only reveal self-reporting of “intermittent” pain that was improving. M.S.W. reported no issues with housekeeping or activities of daily living to either of Dr. Okafor or Dr. Belfon. Further, I find the “plan” in the note is simply “reassured, continue on meds, follow up family doc” which, in my view, is not compelling evidence of chronic pain.

12M.S.W. further submits that she was unable to return to her work as a nursing clerk after the accident due to pain and physical limitations. However, on the evidence, it appears that she self-reported that her work contract ended in August 2016, so it cannot be said that her pain caused functional impairment in her tasks of employment or that she was forced to stop working as a result. M.S.W. also does not identify what her specific physical limitations were. While I agree with M.S.W. that pain relief is a legitimate goal for treatment, when pain is intermittent and decreasing over time, when there is no affect on function and when there is no medical evidence of any musculoskeletal impairment to support the complaints of pain, I find that removal from the MIG is not warranted.

13Second, M.S.W. submits that her psychological diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood justifies treatment beyond the MIG. M.S.W. submits that, as a result of the accident and on the basis of a psychological pre-screen by Dr. Raghu-Raman, she suffered changes to her mood, including sleep disturbances, recurrent thoughts of the accident, anxiety, depression and stress. The OCF-18 submitted by Dr. Raghu-Raman recommended a full psychological assessment to confirm the diagnosis and to develop a plan in response to M.S.W.’s complaints.

14In response to this proposal, Aviva conducted a s. 44 psychological IE with Dr. Zakzanis. On review of the report, Dr. Zakzanis diagnosed M.S.W. with Adjustment Disorder with Mixed Anxiety and Depressed Mood that he attributed directly to the accident on the basis of valid psychological testing that he determined was in line with her complaints. Oddly, Dr. Zakzanis then determined that M.S.W.’s psychological impairments were still minor and subject to the MIG. In the report, Dr. Zakzanis explained that despite his diagnosis and the objective testing results being consistent with her subjective complaints, M.S.W.’s impairments were “minor” because she denied any disability as a result of her symptomatology, advised that her mood had improved since the accident and explicitly stated that she was not interested in psychological treatment or driving rehabilitation.

15I find M.S.W. satisfied her burden to prove on a balance of probabilities that her psychological symptoms require treatment beyond the MIG. To be frank, I struggle to understand Dr. Zakzanis’s position that just because M.S.W. does not want psychological treatment that somehow makes her psychological diagnosis a “minor” one subject to the MIG, even though it is well-settled that psychological diagnoses are not captured by the minor injury definition under the Schedule. I find this conclusion to be somewhat disingenuous—it is Dr. Zakzanis’s job to opine on the facts and diagnosis, but it is the adjudicator’s job to handle the legal conclusions flowing therefrom.

16While I am alive to Aviva’s argument that M.S.W. does not want treatment because her symptoms do not affect her function, I find it compelling (and quite rare in MIG cases) that both Dr. Raghu-Raman in the pre-screen report and Dr. Zakzanis in Aviva’s own s. 44 report came to the same conclusion: that M.S.W. sustained a DSM-5 psychological impairment as a direct result of the accident. M.S.W.’s condition may improve, or it may decline, but the fact remains that there is agreement that she suffers from psychological impairment as a result of the accident. In my view, in the face of a medical consensus, M.S.W. should not be prevented from accessing future treatment by keeping her in the MIG based on her current feeling that she does not need psychological treatment.

17Accordingly, I find M.S.W.’s accident-related psychological impairments justify removal from the MIG as they are not minor injuries as defined by the Schedule.

Are the treatment plans in dispute reasonable and necessary?

18Under s. 15 of the Schedule, an insurer is liable to pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of the accident. The applicant bears the onus of proving that the treatment they seek is reasonable and necessary.

$1,995.33 for psychological assessment

19Given my finding, it follows that I find the treatment plan in the amount of $1,995.33 for a full psychological assessment, prepared by Dr. Raghu-Raman, to be reasonable and necessary. On the basis of the pre-screen report and a s. 44 IE report both diagnosing M.S.W. with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a direct result of the accident, I find it eminently reasonable and necessary to conduct a full assessment to identify accident-related symptoms and to chart a course for treatment in the present or future, as required.

20Contrary to Aviva’s submissions, I find the total cost of the assessment to be reasonable and in line with typical industry costs and find the additional comments section provides a thorough account of what to expect: a clinical diagnostic interview, collateral source interviews, psychological testing, file review, consultation, documentation, interview stage and the cost of completing the OCF-18. Given the total cost at the Guideline rate of $149.61 proposed, this assessment should be completed in 12 hours total or less. In my view, the cost and time to complete the assessment is therefore reasonable and necessary so long as it does not exceed the proposed amount and assuming M.S.W. elects to incur it. Interest is payable on any overdue amounts incurred of this plan pursuant to s. 51 of the Schedule.

$3,454.30 for chiropractic treatment $2,326.28 for chiropractic treatment $2,754.08 for chiropractic treatment

21M.S.W. submits that the physical therapy treatment plans—consisting of chiropractic treatment, massage, exercise, etc.—all proposed by Brampton Civic Care are reasonable and necessary because the goals of the treatment are to reduce pain and improve her functioning. On the evidence, I find that the remaining treatment plans for chiropractic treatment are not reasonable and necessary.

22As noted, I find M.S.W. has not demonstrated that her physical impairments and pain warrant further treatment beyond the MIG. There is no evidence that any of her physical injuries or pain cause functional impairment in her day to day, housekeeping or work activities. Further, the s. 44 IE reports of Dr. Belfon determined that M.S.W. suffered from uncomplicated soft-tissue impairments which were considered to be minor injuries under the Schedule. I agree with Dr. Belfon’s conclusions on all three of these plans that M.S.W. had already reached maximum therapeutic benefit from her facility-based care and there is no convincing rationale for the necessity of further treatment.

23I also agree with Aviva that the need for further treatment to reduce pain and improve functioning is not supported by the evidence, which shows that, at the time the treatment plans in dispute were denied, M.S.W. was functioning well, had returned to her activities of daily living and her pain management prescriptions had ceased. Finally, while I agree that pain relief is a legitimate goal for treatment, I find that M.S.W. has not provided analysis to support how each specific treatment plan submitted is reasonable and necessary to treat her specific impairments. For these reasons, I find M.S.W. is not entitled to payment for the three treatment plans for chiropractic treatment as they are not reasonable and necessary.

CONCLUSION

24M.S.W. sustained accident-related psychological impairments that justify removal from the MIG, as they are not minor injuries as defined by the Schedule. On this basis, M.S.W. is entitled to the psychological assessment as it is reasonable and necessary. Interest applies to any overdue benefits incurred.

25M.S.W. is not entitled to payment for the remaining treatment plans in dispute for chiropractic treatment, as they are not reasonable and necessary.