Released Date:02/26/2021
Tribunal File Number: 20-001025/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits
Between:
Vijeyanthan Jeevakumaran
Applicant
and
Unifund
Respondent
DECISION
ADJUDICATOR:
Craig Mazerolle
APPEARANCES:
Representative for the Applicant:
Victoria Gorbenko, Paralegal
Representative for the Respondent:
Ken Yip, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1The applicant was injured in a motor vehicle accident on January 13, 2018. To assist in his recovery, he applied for medical benefits payable under the Statutory Accident Benefits Schedule (the “Schedule”).1 The respondent determined that his injuries fell within the Minor Injury Guideline (the “MIG”), so it declined to pay for some of this treatment.
2For the reasons to follow, I find that the applicant has established that he suffers from an accident-related, psychological impairment. As such, he is no longer held to the funding and treatment limits of the MIG and s. 18(1) of the Schedule.
3Of the disputed medical benefits, only the psychological assessment is payable.
MINOR INJURY GUIDELINE
4Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.
5In the present case, the applicant also has the onus of demonstrating that his injuries do not fall within the MIG. That is, if an insured person has only suffered a “minor injury” as a result of an accident, s. 18(1) of the Schedule and the MIG together place a $3,500.00 limit on treatment.
6The main means of removal from the MIG is when an insured person can demonstrate that she or he has sustained an impairment that is not “predominantly a minor injury”. A “minor injury” is defined in the Schedule at s. 3(1) as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. This definition does not include psychological impairments.
Parties’ Positions
7The applicant submitted that his accident-related injuries are not “minor” as defined by the Schedule. These impairments include: a concussion, physical injuries, and psychological diagnoses of Adjustment Disorder and driving phobia. According to the applicant, evidence of the severity of these impairments includes the extensive treatment he has received from Mediwise Healthcare Centre (“Mediwise”), i.e., 163 sessions of physical therapy and 11 visits for psychological services.
8Regarding the treatment plans at issue, the applicant claimed that he has received significant benefit from these services, e.g., the applicant told the respondent’s general practitioner assessor, Dr. David Mula, that physical therapy has been helpful. Finally, the applicant submitted that his psychological and physical conditions are linked, such that both sets of impairments must be treated.
9The respondent contended that there is insufficient evidence to support the applicant’s removal from the MIG. For instance, there are no treatment notes from his psychological therapy at Mediwise, and the applicant has cited similar levels of pain throughout his extensive physical treatment at this facility.
10In contrast, the respondent relied on the reports of its assessors to rebut the applicant’s claims. Specifically, Dr. Mula only found minor, physical injuries, while its psychological assessor, Dr. Alfonso Marino, concluded that the applicant’s psychometric test results presented “significant reliability and validity issues” (report dated August 3, 2018). Further, Dr. Marino’s comprehensive validity testing stands in contrast to the minimal validity measures done by the applicant’s psychological assessor, Dr. Harinder Mrahar. Therefore, even though Dr. Mrahar concluded that the applicant suffered from a psychological impairment (report dated August 7, 2018), the diagnoses of Adjustment Disorder and Phobia (driving and passenger) should not be relied upon.
11The respondent also highlighted the few changes to the applicant’s post-accident activity levels as further evidence of the minor nature of his injuries, e.g., he only missed a week of school following the accident; he continues to travel as a passenger, etc.
12The respondent then added that the Tribunal must consider the applicant’s failure to comply with the production order from the June 18, 2020 case conference, namely the order requiring production of “Updated clinical notes and records” from Dr. Victor Figurado, his family physician. According to the respondent, the applicant has only provided notes from January 13, 2015 to September 28, 2018.
13If he is found to be outside of the MIG, the respondent then added that the applicant should have first availed himself of publicly funded, psychological treatment before filing these treatment plans. The respondent also submitted that there is no evidence to support the efficacy of physical treatment, e.g., he reported no benefit from these services to Dr. Figurado (note dated February 26, 2018).
Analysis
14I find that there is sufficient evidence to support the applicant’s claim that he suffers from an accident-related, psychological impairment.
15First, I do not accept the respondent’s submission that there is an absence of corroborating evidence for the applicant’s psychological symptomology. Instead, there are indications that the applicant has mentioned these impairments a number of times outside of formal psychological assessments. For instance, during a re-assessment of the applicant’s condition on February 16, 2019, a practitioner from Mediwise recorded “anxiety” and “lack of sleep” as barriers to the applicant’s recovery. The applicant also self-reported “trouble sleeping” during a visit to this clinic on September 26, 2018.
16Additionally, the Tribunal was provided with a checklist prepared by a chiropractor from Mediwise and the applicant’s family physician (cover letter dated February 26, 2018). The following items were checked off under the list signed by the family physician: “Low mood”, “Feeling restless or on edge”, “Irritability or anger”, etc.
17I would also note that these symptoms were mentioned during the assessment with the respondent’s general practitioner, Dr. Mula. Specifically, when listing his post-accident, functional impairments, the applicant described how he was no longer driving due, in part, to “flashbacks” of the accident.
18Then there are the extensive references to these symptoms in the assessment from Dr. Mrahar. These self-reported symptoms include: trouble sleeping, low mood, issues concentrating with his schoolwork, etc.
19I place significant weight on these consistent self-reports, as they address the major concern that the respondent’s psychological assessor had with the applicant’s presentation. That is, although the applicant reported significant psychological distress (like “flashbacks” and sadness), Dr. Marino concluded that he could not provide the applicant with a diagnosis due to validity issues found during testing and the clinical interview.
20However, when one compares the self-reported symptoms from Dr. Marino’s report to those noted by Dr. Mrahar and others, there is clear continuity. As such, I am satisfied that the applicant has been consistent in expressing psychological distress over an extended period of time following the accident.
21I also take issue with Dr. Marino’s concerns about the applicant’s test results. While it is true that the applicant “scored above the recommended cut-off on four of the five clinical scales” for one of Dr. Marino’s tests, the applicant obtained valid profiles on all of the other tests with validity measures. Additionally, although he cited the possibility of symptom magnification, Dr. Marino opined that even the test where the applicant scored above the cut-off point could be interpreted as a “cry for help”. When the applicant’s elevated test results (e.g., “severe” scores on both of the Beck Indices) are seen alongside these mostly valid profiles, I find that Dr. Marino’s report provides ample support for the applicant’s claim that he suffers from significant psychological distress.
22Further, one of the other issues raised by the respondent involves the different conclusions reached by Drs. Mrahar and Marino, even though their assessments were completed around the same time and produced similar self-reported symptomology and test results (though Dr. Marino’s testing was more fulsome). Instead of viewing this difference of opinions as an argument against the diagnoses from Dr. Mrahar, I see the similarity in symptoms and test results as additional support for the position that the applicant’s self-reported, psychological distress is a truthful account of his condition.
23It should also be noted that Dr. Marino supported his conclusion by stating that there was little evidence that the applicant’s post-accident activity levels have changed in any significant fashion—a major argument raised by the respondent in its submissions. This point was also highlighted in the brief addendum report Dr. Marino produced (dated October 11, 2018), where he commented on the vague nature of the applicant’s responses during his earlier clinical interview.
24I do accept that the functional limitations presented by the applicant are not severe and debilitating in nature (e.g., he can still leave the house, carry on with his personal care activities, etc.), but the totality of the records detailed above establish that psychological symptomology has affected some aspects of the applicant’s daily life. Most notably, the applicant has provided accounts of how psychological symptoms (namely flashbacks to the accident) have impacted his sleep patterns and his level of comfort in a vehicle.
25For this same reason, I also do not place much weight on the concerns raised by Dr. Marino about the “negative impression management” that the applicant displayed in his results on the Personality Assessment Inventory (the “PAI”). If the applicant’s management of how he presented himself was out of line with his actual distress, it would rationally follow that the applicant’s description of his post-accident limitations would be much more severe. Instead, the applicant appears to have a reasonable account of what he can and cannot do, so I do not place much weight on this result from the PAI (and the concern raised by Dr. Marino in his addendum report).
26Finally, while the report from Dr. Marino stated that factors external to the accident have impacted the applicant’s mental health (e.g., worry about his family’s wellbeing), there is no self-reported history of these concerns before the accident. Due to this timeline, I am satisfied that the accident caused this impairment.
27Taken together, I am satisfied that the applicant has established the existence of a psychological impairment. As such, he is no longer held to the funding and treatment limits of the MIG and s. 18(1) of the Schedule.
MEDICAL BENEFITS
28To establish entitlement to a medical benefit, an applicant must demonstrate that the services listed in a treatment plan are reasonable and necessary as a result of impairments caused by the accident.
29Section 47(2) of the Schedule then states that an insurer is not required to pay for services that an insured person can fund through other sources, including OHIP:
Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part IV is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.
30The medical benefits at issue are as follows:
(i) Psychological assessment at the cost of $1,920.53 (treatment plan submitted on May 30, 2018);
(ii) Physical therapy services in the amount of $3,805.76 (plan submitted on May 24, 2018) and $2,738.72 (plan submitted on September 11, 2018); and,
(iii) Psychological services in the amount of $4,463.96 (plan submitted on August 11, 2018).
31The applicant is also seeking interest on any overdue payment of benefits.
Psychological Assessment and Services
32The two psychology treatment plans seek to improve the applicant’s mood, pain management, and activity levels through an assessment and therapy.
33While I accept that the applicant suffers from a psychological impairment, I do not find that the proposed psychological services are payable due to s. 47(2) of the Schedule. Once the respondent introduced the possibility of the applicant accessing publicly funded therapy through OHIP, the onus shifted to the applicant to rebut this proposition. What is more, the respondent supported this assertion by filing an information sheet from the Centre for Addiction and Mental Health (“CAMH”) that listed a number of publicly funded clinics and service providers—evidence that this treatment is (in the words of s. 47[2]) “reasonably available to the insured person”.
34I find that the applicant did not rebut this proposition. That is, not only did the applicant choose not to file reply submissions, but he did not provide any medical notes from his family physician, Dr. Figurado, past September 2018. As such, I have no indication as to whether the applicant attempted to access OHIP-funded services from September 2018 to date—an important time period as the applicant received his psychological assessment (and diagnoses) from Dr. Mrahar in August 2018.
35I also highlight this lack of records, as the respondent asked me to draw an adverse inference from the applicant’s failure to provide updated clinical notes and records from his family physician—a contravention of the case conference order from June 2020. Briefly, I accept that the applicant was ordered to provide updated records from this health practitioner, and so I can infer from his failure to satisfy this request that these notes contain no indication that the applicant explored the possibility of referrals to psychological treatment from Dr. Figurado.
36However, I cannot draw the same conclusion about s. 47(2) for the psychological assessment, as there is no indication whether a similar expense is “reasonably available” to be paid through OHIP. That is, while some of the organizations in the CAMH information sheet mention “assessment” as one of their services, I am not satisfied that these “assessments” are comparable to the service that was offered by Dr. Mrahar.
37That is, the report completed by Dr. Mrahar involved comprehensive testing and the development of a fulsome plan for future treatment. Without further information about the “assessments” offered by these other service providers, I cannot determine whether they would be as extensive as the psychological assessment now at issue.
38As such, I find that this psychological assessment is not only necessary for the applicant’s recovery (as the report includes a detailed course of treatment that his healthcare team can follow to help him address this impairment), but the cost is in line with the limits established for assessments under s. 25(5) of the Schedule. It is, therefore, payable.
Physical Therapy Services
39The two physical therapy treatment plans seek to achieve pain reduction, increased range of motion/strength, and a return to the applicant’s pre-accident activity levels. To accomplish these goals, the clinic will use a series of physical therapy modalities, including chiropractic services and physiotherapy.
40I am not satisfied that these services are necessary for the applicant’s recovery, as there are indications that physical therapy is no longer assisting the applicant with his accident-related impairments. For instance, during the assessment with Dr. Mula, the applicant reported that physical treatment from Mediwise was “providing 40% relief lasting three hours with ‘not much’ improvement in range of motion and mobility.” This minimal efficacy was also reflected in his comments to Dr. Marino, and (though it was early on in his treatment) a similar sentiment was expressed to Dr. Figurado in February 2018.
41Further, in the clinical records from Mediwise, there appears to have been some improvements early on, but these effects have plateaued. For example, though there is a reported reduction in pain between an early assessment on January 29, 2018 and later re-assessments, these improvements appear static (e.g., pain levels basically stayed the same between the assessments done on September 11, 2018 and February 16, 2019).
42I do accept that the applicant has attended extensive physical treatment with Mediwise, an indication that he believes there is value to these services. I also accept that the accident left the applicant with physical impairments (e.g., during the assessment with Dr. Mula, the assessor noted tenderness in the cervical spine, as well as reductions in the applicant’s range of motion). However, without some indication that he is receiving an ongoing benefit from these services, I find that these numerous visits to Mediwise are, in fact, evidence that some other form of treatment should be attempted. In sum, I am not satisfied that the physical therapy treatment plans are reasonable and necessary.
43As a final note, the applicant raised the argument that improving his physical health would be a means of improving his psychological distress. Even if I accept this line of reasoning, I still need to be satisfied that the disputed physical treatment is working to improve his physical wellbeing. Without this improvement, the purported effects on his mental health cannot then be established.
ORDER
44The applicant has demonstrated that he suffers from an accident-related, psychological impairment. As such, he is no longer bound by the treatment and funding limits of the MIG and s. 18(1) of the Schedule.
45The disputed psychological assessment is payable in the amount of $1,920.53. Interest shall be paid in accordance with s. 51 of the Schedule.
46The rest of the disputed medical benefits are not payable.
Released: February 26, 2021
Craig Mazerolle
Adjudicator
Footnotes
- Effective September 1, 2010, O. Reg. 34/10.