J. S. v. BelairDirect, 2020 CanLII 87931

Citation: J. S. vs. BelairDirect, 2020 ONLAT 19-005277/AABS

Released Date: 10/06/2020

Tribunal File Number: 19-005277/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:

J. S.

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Inna Zaremba

For the Respondent: Denise Junkin

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on November 3, 2016 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 (the “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:

1. Has the applicant sustained predominantly minor injuries as defined under the Schedule?
2. Is the applicant entitled to a medical benefit in the amount of $1,316.89 less $1,091.27 approved by the respondent, for physiotherapy treatment recommended by Health Bound Health Network in a treatment plan dated May 8, 2017?
3. Is the applicant entitled to a medical benefit in the amount of $1,979.84 for a psychological assessment recommended by Alliance Diagnostic & Treatment in a treatment plan dated February 24, 2017?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the MIG and the $3,500.00 funding limit.

5The applicant is not entitled to the disputed physiotherapy treatment plan and the psychological assessment plan because the plans propose interventions that fall outside of the MIG.

6No interest is payable because no payments went overdue.

BACKGROUND

7The applicant was the driver of a vehicle which drove over a change in road surface. The drop-off from one surface to the other was significant enough that the incident caused the applicant’s airbags to deploy and they impacted the applicant’s legs. The applicant sought no medical assistance at the scene of the accident, but went to her family physician, Dr. N. A. Abell, about two weeks later and complained of leg pains as a result of the accident. Dr. Abell examined the applicant, diagnosed her with soft tissue injuries, and referred her to physiotherapy.

8The applicant engaged in treatment following the accident. The respondent characterized the applicant’s injuries as a minor injury as defined by the Schedule, capping her funding limit on treatment at $3,500.00.

9The applicant submits that she suffered physiological injuries as a result of the accident and claims such injuries are excluded from the minor injury definition and the $3,500.00 funding limit on treatment.

THE MINOR INJURY GUIDELINE

10The 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.

11If 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.

12I find that the applicant sustained a minor injury as defined by the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment as a result.

Medical and Any Other Reasons

13The applicant claims entitlement to the disputed treatment plan and psychological assessment because, according to her, the respondent failed to comply with sections 38(8) and 38(14) of the Schedule. Pursuant to section 38(8), the respondent must provide the medical and any other reason why it considers the goods and/or services to be not reasonable and necessary. The applicant argues that, pursuant to section 38(11), the respondent’s failure to comply with section 38(8) disentitles it from taking the position that the MIG applies and must pay for all goods and services listed in the treatment plan which are incurred before a compliant notice is given¹.

14I find that the May 18, 2017 letter complies with section 38 of the Schedule in that it provides a clear and unequivocal denial of a benefit and a medical reason for the denial. The letter confirms receipt of the treatment plan dated May 8, 2017 and advised the applicant that she is entitled to treatment under the MIG based on the medical documentation on file, which I find to be a medical reason. The letter provides the minor injury definition and funding limit and states that it will pay up to $1,091.27 in treatment – which would bring the applicant up to the $3,500.00 funding limit. Further, the letter invites the applicant to submit evidence of an injury which is not included in the MIG or of a pre-existing medical condition documented by a health practitioner that would prevent her from reaching maximal recovery within the $3,500.00 MIG funding limit. The applicant’s right to dispute notice was also enclosed in the correspondence.

15Pursuant to section 38(14) of the Schedule, within 10 days of receipt of an insurer’s examination, the respondent shall provide the applicant with a notice indicating the goods and services it agrees to pay for and those it doesn’t agree to pay for, as well as the medical and any other reasons for the decision. Section 38(14)(b) provides that the respondent must advise the applicant of whether it believes her injuries fall within the minor injury definition.

16The May 24, 2017 letter complies with section 38 of the Schedule. It provides the minor injury definition, notifies the applicant that, according to the insurer’s examination report by Dr. P. Robinson, the injuries she sustained qualify her for treatment under the MIG, which I find to be a medical reason. It confirms that it will not fund the goods and services proposed in the treatment and assessment plan but would fund goods and services in accordance with the MIG. The requisite applicant’s right to dispute document is also provided.

17I find no statutory entitlement to the disputed treatment and assessment plans considering the respondent’s compliance with section 38 of the Schedule.

Psychological Injury

18The applicant claims to suffer from adjustment disorder with mixed anxiety and depressed mood, features of posttraumatic stress disorder, features of specific phobia, situational type (motor vehicles), and somatic symptom disorder as a result of the accident, and submits that these psychological injuries are not included in the minor injury definition. The respondent submits that the applicant must show that she has an actual psychological impairment and not just symptomology.

19I find no compelling evidence of a psychological injury which would warrant the applicant’s remove from the MIG.

20Dr. Abell’s clinical notes and records (“CNRs”) are devoid of any psychological symptoms and fail to support the applicant’s claim. Dr. Abell diagnosed the applicant with soft tissue injuries and made no diagnosis or referral related to psychological injuries as a result of the accident. The disability certificate dated November 21, 2017 lists predominantly soft-tissue injuries and confirms that the applicant returned to work and did not meet any of the disability tests. While there is a single entry, dated June 26, 2019, that refers to the applicant’s psychological health, it does not confirm a psychological injury. The entry states, “see note from psych” and “see psych”, but the note was not provided for this hearing and the records show that Dr. Abell made no referral for a psychological assessment or treatment. The recommendation from Dr. Abell after that visit was to get a full physiotherapy assessment, presumably because, according to the notes, the applicant reported to Dr. Abell that she did not attend physiotherapy following the accident.

21The disability certificate completed by Dr. J. Koehle, chiropractor, dated January 27, 2017, is uncompelling due to the absence of any other medical records to support the insomnia diagnosis in it. The disability certificate states that the applicant suffered from various neck and back injuries but there are no other records to support such a finding. In fact, the applicant denied any neck pain two months earlier in her visit to Dr. Abell on November 21, 2017, and there are no CNRs from Dr. Koehle to provide any basis for the findings in the disability certificate.

22Likewise, the treatment plan completed by Dr. R. Maano, chiropractor, proposing the psychological assessment is also uncompelling due to the absence of medical records to support the referral. There are no CNRs from Dr. Maano or Alliance Diagnostics and Treatments Inc. before me. As a result, I am unable to determine how or why a chiropractor would be compelled to refer a patient to a psychological assessment when the patient’s own family physician made no such referral during her post-accident care. Further, psychological health is outside the scope of a chiropractor, yet it was Dr. Maano who conducted the intake appointment and provided the applicant with the self-administered World Health Organization Disability Assessment Schedule test. While a more fulsome pre-screen interview was taken by someone under the supervisions of Dr. M. Pojhan, psychologist, there still lies no documented medical basis to initiate the process to administer a psychological assessment.

23The report of Dr. M.- R. Sadeghi, dated May 3, 2019, is less compelling than the IE reports of Dr. P. J. Robinson, dated May 11, 2017, and Dr. C. Bradbury, dated August 22, 2019, and addendum report dated December 3, 2019. Dr. Sadeghi failed to review relevant medical records for the assessment – only the treatment plan and intake summary by Dr. Maano, chiropractor, were reviewed. Dr. Sadeghi never had the benefit of reviewing Dr. Abell’s CNRs or the May 11, 2017 psychological IE report of Dr. Robinson. As a result, Dr. Sadeghi reviewed no clinical records pertaining to the applicant’s pre-assessment and pre-accident health and activity. Yet, the report finds that she has not returned to her pre-accident activities. Remarkably, the report also finds the applicant has personal care barriers and is limited in housekeeping and home maintenance despite the applicant’s return to her regular work as a housekeeper, two days following the accident.

24Dr. Robinson’s May 11, 2017 report concluded that the results of the interview and psychometric testing do not indicate a diagnosable psychological disorder that would fall outside the minor injury definition. In the report, Dr. Robinson acknowledged that the applicant reported some emotional struggle, but that she also reported to continually function normally both at work and home. Dr. Bradbury’s August 22, 2019 assessment included a review of Dr. Sadeghi’s report, Dr. Robinson’s report, and Dr. Abell’s CNRs. Dr. Bradbury concluded that the applicant did not meet the diagnostic threshold for any psychological disorder attributable to the accident. Dr. Bradbury found that the applicant was not presenting with any substantive psychological sequala that would substantially complicate or prolong recovery that would warrant the applicant’s removal from the MIG.

25The applicant’s psychological assessment report and other evidence notes some signs of psychological symptomology. However, the evidence fails to show that the applicant’s psychological symptoms impair her and reach the threshold required to warrant psychological treatment. As a result, there is no basis in which to diagnose an injury which is not included in the minor injury definition and to justify her removal from the MIG.

26The disputed treatment plans propose services which fall outside the methodologies prescribed by the MIG. As a result, an analysis of whether the treatment and assessment plans are reasonable and necessary is not required.

INTEREST

27Pursuant to section 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. The applicant is not entitled to interest as no payments went overdue.

CONCLUSION

28The applicant’s injuries as a result of the accident fall within the minor injury definition. As a result, the applicant is subject to the MIG and the funding limit prescribed by section 18 of the Schedule.

29The applicant is not entitled to the disputed treatment plans because the plans seek funding for services which fall outside the methodologies prescribed by the MIG.

30No interest is owed.

Footnotes

1. 1M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)