Licence Appeal Tribunal File Number: 20-002579/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:
Lun Hui Wang
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Dharshika Pathmanathan, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Lun Hui Wang, (“the Applicant”), was involved in an automobile accident on October 30, 2017, and sought benefits from Aviva General Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule''). The 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
2The issues in dispute for this hearing are:
I. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 funding limit and in the MIG?
II. Is the applicant entitled to $4,725.12 for chiropractic services, recommended by Physiotherapy Fix in a treatment plan dated April 5, 2018?
III. Is the applicant entitled to $4,572.56 for chiropractic services, recommended by Physiotherapy Fix in a treatment plan dated June 9, 2018?
IV. Is the applicant entitled to $2,195.85 for psychological services, recommended by Physiotherapy Fix in a treatment plan dated February 1, 2018?
V. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the Applicant sustained psychological injuries as a result of the accident and is not bound by the $3,500.00 funding limit for treatment in the MIG.
4The chiropractic treatment plan dated April 5, 2018 was replied to late and failed to include medical reasons for the denial. The Applicant is entitled to the goods and services relating to this plan and incurred between April 21, 2018 and June 22, 2018, plus any applicable interest pursuant to section 51 of the Schedule.
5The chiropractic treatment plan dated June 9, 2018 is not reasonable and necessary. No interest is payable on this treatment plan.
6The psychological assessment plan dated February 1, 2018 is reasonable and necessary. The Applicant is entitled to payment for it once properly invoiced, plus any interest pursuant to section 51.
BACKGROUND
7The Applicant was the driver of a sedan, stopped at a traffic light in Toronto, that was struck on the driver’s side in a perpendicular fashion by a garbage truck. No ambulance or police attended at the scene of the accident, but the Applicant was taken to a collision reporting centre by a tow truck and, after reporting, drove home in a rental car.
8The Applicant reported the accident to his family physician, Dr. A. Leung, on October 31, 2017, the day after the accident. The clinical notes and records (“CNRs”) from Dr. Leung are illegible, but the Applicant submits that Dr. Leung assessed him during that visit and prescribed medication and physiotherapy. The Applicant started physiotherapy treatment at Physio Fix & Fitness around November 3, 2017.
9The Respondent characterized the Applicant’s injuries are predominantly minor injuries subject to the MIG and the $3,500.00 funding limit on treatment. The Applicant disputes this characterization and submits that he sustained an adjustment disorder with mixed anxiety and depressed mood and driver and passenger anxiety. He submits that the psychological injuries affect his functioning and warrant his removal from the MIG and the $3,500.00 funding limit on treatment.
MINOR INJURY GUIDELINE (MIG)
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. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.
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.
12Upon review of the evidence and submissions, I find that the Applicant sustained injuries which fall outside the definition of a minor injury as outlined in the Schedule. As a result, he is not subject to the $3,500.00 funding limit provided by section 18 of the Schedule.
Psychological Injuries
13I find that the Applicant sustained psychological injuries as a result of the accident. Such injuries are not included in the MIG. As a result, he is not bound by the MIG or the $3,500.00 funding limit on treatment.
14The Applicant sustained an adjustment disorder with mixed anxiety and depressed mood and driver and passenger anxiety. This diagnosis was made by Dr. A. Bodnar, psychologist, following the Applicant’s participation in a psychological pre-screen assessment and a psychological assessment which included a clinical interview and psychometric testing, both conducted by M. Fong, registered social worker, under the supervision of Dr. Bodnar.
15The pre-screen report stated that the Applicant stopped working for a week following the accident, due to pain and physical restrictions. It further reported that the Applicant found the psychological repercussions of the accident to be “more troubling” to him than his physical injuries. It notes that he is anxious when travelling on the road, has reduced stamina, and cognitive difficulties. The Applicant reported that he worries about his job security if his stamina and cognitive difficulties do not improve. The pre-screen assessment report also notes sleep issues, disturbing dreams, and intrusive thoughts. The report says that the Applicant stated that he is feeling out of control and worried that he may develop greater psychological problems and that he indicated an interest in receiving counselling as soon as possible.
16In the psychological assessment report dated April 28, 2018, the Applicant told the assessor that he experiences significant sadness, anxiety, fear, pessimism, and irritability. The report notes that the Applicant has difficulty “calming his mind” and experiences cognitive issues like a lack of concentration or an inability to remember details. It notes that the Applicant reports a loss of appetite and has lost weight since the accident. He reported frustration in being unable to return to his pre-accident household chores and said that he has lost his confidence to adequately socialize. He stated that the accident occurred on his route to and from work and, since the accident, he has been detouring and avoiding the area.
17The psychological assessment by Dr. Bodnar and M. Fong included psychometric testing. On the Beck Depression and anxiety inventory tests, the Applicant scored in the moderate range for depression and in the severe range for anxiety.
18The insurer’s examination (“IE”) report by Dr. S. Schwartz, psychologist, dated March 27, 2018, (“the Schwartz report”), concluded that the Applicant presents no injury from a psychological perspective as a result of the accident. This assessment consisted of a clinical interview and psychometric testing. During the assessment, the Applicant reported that he continues to drive since the accident but feels scared when another vehicle is too close. He reported bouts of depression of about an hour each day, though he noted that it may be due to pressure from work or family. He reported “good” concentration but says he forgets things easily. The Schwartz report notes that during the interview the Applicant “stated that he does not think that he needs (psychological counselling) and does not want such”, which is not reflected in the Bodnar report.
19I find that the Schwartz report is less persuasive than the Bodnar and Fong report because it disregards the results of the psychometric tests. On the Beck depression and anxiety inventory tests during the assessment with Dr. Schwartz, the Applicant scored in the mild range for depression and severe range for anxiety. The Pain Inventory test found below average scores for depression and somatization and average in anxiety when compared to the average pain patient. Dr. Bodnar fails to reconcile the test results, in which the Applicant falls in the severe range for anxiety, with the conclusion of the assessment and report: that the Applicant presents no injury from a psychological perspective as a result of the accident.
20Considering the evidence above, on a balance of probabilities, I conclude that the Applicant sustained an adjustment disorder with mixed anxiety and depressed mood and driver and passenger anxiety. These psychological injuries fall outside the MIG. Thus, the Applicant is not bound by the MIG and the $3,500.00 funding limit on treatment.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
Psychological Assessment Plan dated February 1, 2018
21Considering my finding that the Applicant sustained psychological injuries as a result of the accident, it follows that the Applicant is entitled to the costs associated with the disputed psychological assessment plan. This is because the assessment is reasonable and necessary to address the Applicant’s psychological health and determine what, if any, treatment is appropriate for the Applicant.
22The evidence shows that the Applicant incurred the cost of the assessment. Thus, he is entitled to payment for it once properly invoiced, plus any applicable interest, pursuant to section 51 of the Schedule.
The Chiropractic Treatment Plan dated April 5, 2018
23The Applicant claims entitlement to this treatment plan because the Respondent failed to reply to it pursuant to the timelines prescribed by section 38(8) of the Schedule. That section of the Schedule provides that the Respondent must, amongst other things, reply to a treatment and assessment plan within 10 business days after receipt.
24The Parties agree that the treatment plan was replied to late. It was submitted on Thursday, April 5, 2018 at 6:19 p.m., effectively, Friday, April 6, 2018, and that the Respondent replied to the plan on Friday, April 20, 2018, at 5:17 p.m., effectively, Monday, April 23, 2018.
25The Applicant submits that, when the late denial was provided, it wrongly relied on the MIG to deny him entitlement to the treatment plan. He further submits that that breach of section 38(8) was not cured until he received a second notice, dated June 22, 2018. The second notice enclosed the June 7, 2018 IE report by Dr. S. Qadeer, physician, and told the Applicant that the April 5, 2018 treatment plan was not reasonable and necessary based on Dr. Qadeer’s report. He submits that he incurred all the goods and services listed in that treatment plan by June 22, 2018.
26The Respondent submits that the response, albeit a day late, is proper because it cited the soft tissue nature of the Applicant’s injuries as the medical reason and properly advised that her injuries fell within the MIG.
27I agree with the Applicant and find that, pursuant to section 38(11), the Respondent is precluded from relying on the MIG to deny this treatment plan because it failed to comply with the timelines prescribed by section 38(8) of the Schedule.
28The April 20, 2018 letter is improper because it is untimely and relies on the MIG to deny entitlement to this treatment plan. Section 38(11)1 states that, with respect to an untimely response, “The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.” The letter relies on the MIG to deny the treatment plan. It notes that the information received to-date shows soft-tissue injuries which are consistent with the “minor injury” definition in the Schedule. The Respondent advised that it believes that the MIG applies and will seek an IE to determine so. To me, this shows that the MIG is the only reason why the treatment plan was denied. As a result of the above, I find that the denial is improper.
29Pursuant to section 38(11)2, the Applicant is entitled to the goods and services incurred, for the period starting on the April 23, 2018 and ending June 22, 2018, when a proper denial was given. The Applicant is also entitled to any applicable interest on the incurred goods and services, pursuant to section 51 of the Schedule.
The Chiropractic Treatment Plan dated June 9, 2018
30I find that this treatment and assessment plan is not reasonable and necessary for the Applicant’s accident-related injuries.
31I prefer the opinion of Dr. Qadeer, in the June 7, 2018 IE report, over that of Dr. M. Malastesta, chiropractor, in the progress report dated May 31, 2018.
32Dr. Malastesta’s May 31, 2018 assessment and report states that the Applicant visits his family physician for sleep issues and pain. He infers that the physician prescribed medication for his pain, and recommended he continue with his rehabilitation therapies. However, I am unable to identify any recommendations for medication or continued rehabilitation in Dr. Leung’s records and there is no indication that the Applicant has another family physician. Dr. Malastesta’s assessment identified no significant physical impairment. For example, it noted that the Applicant’s neck range of motion was reduced between 10-25%, depending on the movement, and that he rated his pain in the range of 1/10 to 3/10, depending on the area.
33On the other hand, Dr. Qadeer assessed the Applicant on May 25, 2017 and found some spinal tenderness on palpation, but no musculoskeletal impairments or range of motion deficits were observed. Dr. Qadeer concluded that, based on the assessment and within the scope of a physician, the chiropractic treatment plan is not reasonable and necessary. Dr. Qadeer’s conclusion appears more consistent with the other evidence, which shows that the Applicant seldomly visits his family physician for accident-related injuries and that he returned to a physically demanding job about one-week following the accident. While I appreciate that rehabilitative treatment may have enabled the Applicant to return to work, there is no medical opinion to support this. As a result, I prefer Dr. Qadeer’s opinion and find that this disputed treatment plan is not reasonable and necessary for the Applicant’s accident-related injuries.
CONCLUSION
34The Applicant sustained psychological injuries as a result of the accident. Thus, he is not bound by the MIG or the $3,500.00 funding limit on treatment.
35The psychological assessment is reasonable and necessary to determine the extent of the Applicant’s psychological injuries and, if necessary, devise a plan to treat any injuries. The Applicant is entitled to the cost of the assessment once properly invoiced, plus any applicable interest, pursuant to section 51 of the Schedule.
36The Respondent failed to comply with the time provisions in section 38(8) of the Schedule and cannot rely on the MIG to deny entitlement to the chiropractic treatment plan dated March 28, 2018. Pursuant to section 38(11), the Applicant is entitled to the goods and services related to this treatment plan and incurred following April 23, 2018 and ending on June 22, 2018. The Applicant is entitled to the cost of the goods and services incurred during the period listed above, once properly invoiced, plus any applicable interest, pursuant to section 51 of the Schedule.
37The chiropractic treatment plan dated June 9, 2018 is not reasonable and necessary for the Applicant’s accident-related injuries.
Released: December 17, 2021
Brian Norris, Adjudicator