Licence Appeal Tribunal File Number: 20-013665/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:
Colleen Krzweski
Applicant
and
CUMIS General Insurance Company
Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Colleen Krzweski, Applicant Dean Trinetti, Counsel
For the Respondent: CUMIS General Insurance Company Justine Lee Young, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on October 7, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.
2The applicant is 65-years-of age. Two days after the accident, on October 9, 2019, she attended her family physician Dr. Brooymans’ office, and reported her injuries. Although the physician’s notes are handwritten, and in certain sections illegible, Dr. Brooymans describes that the applicant reported a serious accident.
3It is acknowledged in the respondent’s submissions that the applicant had pre-existing psychological conditions, as described in the clinical notes and records (CNRs) of Dr. Brooymans. Pre-accident, the applicant reported symptoms of anxiety and depression.
ISSUES IN DISPUTE
4The issues to be decided in the hearing are:
- Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, the $3,500.00 limit and in the Minor Injury Guideline (MIG)?
- Is the applicant entitled to the assessments proposed by MediAssess Evaluations Incorporated, as follows: (i) $2,486.00 for other goods and services of a medical nature, in a treatment plan (OCF-18), submitted on June 11, 2020, denied on June 22, 2020; and $2,486.00 for psychological services, in a OCF-18, submitted on May 13, 2020, denied on May 22, 2020;
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that:
a. The applicant’s injuries do not fall under the definition of “minor injury” in the Schedule and so the applicant is not bound by the funding limits of the MIG.
b. The applicant is not entitled to $2,486.00 as a reasonable and necessary expense, paid by the respondent insurer, for a treatment plan/ OCF-18 for a Chronic Pain Assessment, proposed by MediAssess Evaluations Incorporated in an OCF-18 completed by Dr. Igor Wildermen, on June 11, 2020.
c. The applicant is entitled to $2,486.00 as a reasonable and necessary expense, paid by the respondent insurer, for a treatment plan/ OCF-18 to complete a Psychological Assessment, submitted on May 22, 2020, by MediAssess Evaluations Incorporated.
d. The applicant is not entitled to interest payable in accordance with s. 51 of the Schedule from the date of denial of the two treatment plans since they were not incurred and there is $3,300.00 of the MIG remaining.
ANALYIS
Section 38
6The applicant submits that the respondent unreasonably withheld payment of benefits, denying the treatment plans in dispute without stating the medical grounds for the denial and without requesting further medical documentation. Once medical documentation was provided, the applicant submits that the respondent did not readjust the claim, nor did it at any time provide a medical basis for the denial of the treatment plans in violation of s. 38(8) and 38(11) of the Schedule. The applicant submits that the respondent further failed to take steps to arrange Insurance Examinations (IEs) to support its position relating to the denials.
7The applicant submits that the respondent insurer has not provided any medical grounds for keeping the applicant within the MIG. The applicant submits that regardless of whether the treatment plans are deemed reasonable and necessary, the respondent is prohibited from keeping the applicant within the MIG based on the operation of s. 38(8) and 38(11) of the Schedule. She says the respondent must pay for the denied treatment plans.
8The respondent submits that, pursuant to s. 33(1) of the Schedule, the applicant was required to provide Dr. Brooymans’ CNR’s within a specific period upon the insurer’s request in order to reasonably assist the insurer in determining the applicant’s entitlement and the reasonableness and necessity of the treatment plans. The applicant failed to provide the information within the period required by s. 33(1) of the Schedule but provided Dr. Brooymans’ CNR’s in March 20201. The respondent appropriately submits that the failure to provide medical evidence to support the proposed OCF-18s until approximately 2 years post-accident (one year after the denials), caused a significant delay impacting the insurer’s arrangement of IEs. The respondent submits that the criteria in the Schedule was satisfied by the insurer’s request for information and pending receipt of the family doctor’s CNR’s. Where an insurer satisfies the criteria of s. 38(8) and 38(11), denying an OCF-18 based on the MIG by requesting production of certain items, and the applicant fails to produce them, the denial notice is sufficient. I agree with the respondent on this point.
9In the alternative, the respondent submits that, if the insurer is found to be non-compliant with s. 38(8), the insurer is only responsible to pay any incurred portion of the treatment plan during the period of non-compliance. The applicant has not exhausted the MIG in this case and $3300.00 in funding remains available to the applicant.
10In considering s. 33(1) and 33(6) of the Schedule, as well as s. 38(5), 38(8) and 38(11), I find that the respondent was entitled to refuse to accept a treatment and assessment plan during a period when the insured was entitled to receive goods and services under the MIG because the applicant provided the family doctor’s CNRs well outside the time frame set forth in the Schedule, and only $200.00 of the MIG had been incurred. In addition, pursuant to s.38(6), the insurer’s refusal to accept a treatment and assessment plan under s. 38(5) is a final decision, not subject to review.
11According to the recent Ontario Court of Appeal decision, Varriano v. Allstate Ins. Company of Canada, 2023 ONCA 78, and the principles established by the Supreme Court of Canada in Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, a medical reason for a denial does not have to be provided if there was no medical basis for the denial at issue. In this case, the respondent requested the CNRs from Dr. Brooymans in the denial letters, pursuant to s. 33 (1) of the Schedule, and the applicant had not exhausted the MIG since there was $3300.00 remaining to the applicant within the MIG. I find that the respondent did not violate s. 38(8) or 38(11) of the Schedule since the applicant was required by virtue of s. 33(1) of the Schedule to provide the CNR’s of Dr. Brooymans as requested, As stated, I find that the respondent was entitled to refuse to accept a treatment and assessment plan during a period when the insured was entitled to receive goods and services under the MIG, because the applicant provided the family doctor’s CNRs well outside the time frame set forth in the Schedule, and only $200.00 of the MIG had been incurred.
Minor Injury Guideline
12S.18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that meet the definition of a minor injury.
13S. 3(1) defines “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury.”
14Individuals may be removed from the MIG if they can establish that their accident-related injuries fall outside of the definition of minor injury or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities, that her injuries are not minor, or she has a pre-existing condition that would prevent maximal recovery within the MIG.
PRE-EXISTING CONDITIONS
15The applicant submits that her pre-existing physical injuries should take her out of the MIG. She also submits that her history of depression and anxiety is evidenced as a pre-existing condition in the CNRs of Dr. Brooymans. The applicant submits that following the accident, she reported a fear of driving, depression and anxiety, in addition to left shoulder bursitis with a reduced range of motion. She submits that her symptoms of anxiety, depression and chronic pain persisted before and after the death of her husband in February 2021. In addition, she claims that her injuries are not minor based on the CNRs describing chronic pain, psychological injuries, and the aggravation of her pre-accident condition.
16The respondent submits that the applicant did not provide compelling medical evidence to substantiate a diagnosis of chronic pain syndrome or that the applicant’s pre-existing knee pain was in any way exacerbated by the accident, preventing recovery within the MIG limits. The respondent submits that the applicant has not provided evidence to establish chronic pain syndrome or demonstrating the reasonableness and necessity of the OCF-18 recommending a chronic pain assessment. The respondent notes that on November 28, 2019, Dr. Brooymans described that the applicant suffered chronic left shoulder bursitis and on March 3, 2020, that she suffered ongoing bursitis pain, which the respondent submits do not amount to an actual diagnosis of chronic pain syndrome.
17The respondent submits that the applicant’s injuries fall within the MIG. In addition, it argues that although the applicant was receiving medication for anxiety before the accident, there is no evidence to suggest that the applicant’s anxiety was exacerbated by the accident. The respondent argues that the increase in the applicant’s anti-depressant medication after the accident was because of her husband’s death.
PSYCHOLOGICAL CONDITION
18A psychological impairment, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include accident-related psychological impairments. I find the CNRs of Dr. Brooymans establish a history of mental illness pre-dating the accident. The applicant was prescribed Zoloft in December 2018 and Lorazepam in February 2020. The CNRs reveal that the applicant was diagnosed with Generalized Anxiety Disorder by her family physician on December 27, 2018. On July 11, 2019, the applicant reported insomnia, agitation and anxiety. In August and September, 2019, the applicant reported that her symptoms of depression and anxiety were improving and stabilizing while continuing her anti-depressant, Zoloft.
19Given the evidence of the applicant reporting increased mental health issues following the accident and the increase in the applicant’s dosage of anti-depressant medication, I find the accident exacerbated the applicant’s pre-existing psychological impairments. Post-accident, on March 3, 2020, the applicant reported being anxious and avoiding driving whenever possible. The respondent submits that any deterioration in the applicant’s mental health post accident was caused by the applicant’s husband’s death in February 2021. On September 28, 2020, the applicant increased her anti-depressant dosage, which dosage of Zoloft was increased post-accident both before and after the death of the applicant’s husband. As noted, the applicant was prescribed Lorazepam in February 2020. Based on the chronology of the increase in anti-depressant medication following the accident and prior to the applicant’s husband’s death, I disagree with the respondent’s submission that the accident did not exacerbate the applicant’s psychological condition. I find that the applicant should be removed from the MIG based on her pre-existing psychological impairments as evidenced in the CNR’s of Dr. Brooymans, which show the applicant’s psychological impairments were exacerbated by the accident.
20I find, on a balance of probabilities, that the applicant has provided compelling medical evidence, in the form of the CNRs of her family physician Dr. Brooymans of a pre-existing psychological impairment that I find is compelling evidence under s. 18(2) that would remove the applicant from the MIG. The applicant reports to her family doctor ongoing anxiety and depression, as stated, which escalated following the accident that also removes her from the MIG.
21As stated, I find, on a balance of probabilities, that the applicant has provided compelling medical evidence, in the form of the clinical notes and records (CNR’s) from her family physician Dr. Brooymans of a pre-existing psychological impairment that I find is compelling evidence under s. 18(2) which removes the applicant from the MIG.
22S. 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident, and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.
23On May 22, 2020, the insurer wrote to the applicant denying the reasonableness and necessity of the OCF-18 dated May 13, 2020, recommending a Psychological Assessment. No medical reasons are provided in the denial letter, rather it is stated that the applicant’s injuries are within the MIG and the applicant is required to submit additional medical documentation in support of the OCF-18 consisting of the family physician’s CNRs from one year preceding the accident. On June 22, 2020, the insurer denied the OCF-18 requesting a Chronic Pain Assessment for the same reasons.
24On June 11, 2020, MediAssess Evaluations submitted an OCF-18 to the insurer completed by Dr. Igor Wildermen, recommending a Chronic Pain Assessment. The injuries listed in the OCF-18 include complaints of neck pain with neurological signs, sprain and strain of unspecified parts of the knee, shoulder girdle, thoracic spine, lumbar spine and wrist, as well as headache and nervousness. The goals of the Chronic Pain Assessment are pain reduction and a return to the activities of normal living. It is stated in the OCF-18 that an assessment by a Chronic Pain Specialist will be beneficial in determining the exact nature of the pain experienced and the appropriate multi-disciplinary pain management program to assist with the patient’s recovery.
25The applicant submits that she suffered pre-existing chronic pain, which was later exacerbated by the accident. Diagnostic imaging of the applicant taken on July 25, 2018, reveal early degenerative changes in patellofemoral joints and advanced degenerative changes in medial joints. An assessment by Healthmax Physiotherapy Clinics dated February 21, 2019, states that the applicant had the early stages of right-sided osteoarthritis and that the goal of physiotherapy was to improve hip and knee strength, providing modalities for pain management. Prescription records from February 2019, show the applicant prescribed pain medication in the form of Naproxen at regular intervals. The applicant has been employed by the Toronto Catholic District School Board, however, she applied for short-term disability in 2018, on the recommendation of her family physician, based on poor concentration, anxiety, insomnia, and knee pain.
26On October 9, 2019, the applicant reported accident-related injuries to her family doctor including spinal, neck and shoulder pain. Without the applicant specifically referring to the accident when she subsequently met with her family doctor, she relates experiences of pain and is prescribed pain medication. As stated, on November 28, 2019, the applicant reports chronic left shoulder bursitis, later addressed on March 3, 2020, as chronic bursitis pain.
(i) The respondent submits that the Tribunal analysis of a chronic pain diagnosis should be assessed against the American Medical Association (AMA) Guide. The AMA Guide states that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:
(ii) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
(iii) Excessive dependence on health care providers, spouse, or family;
(iv) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
(v) Withdrawal from social milieu, including work, recreation, or other social contacts;
(vi) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and
(vii) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
27The applicant submits that she suffers chronic pain syndrome by reason of pre-existing knee pain worsened as a result of the accident, in addition to anxiety and bursitis. The respondent submits that the applicant has failed to address the AMA guide criterion in their submissions and is relying on notations of chronic pain and anxiety in Dr. Brooymans’ CNR’s. The respondent submits that there is no evidence of prescription drug usage beyond recommended duration nor evidence of abuse of prescription drugs. The respondent notes that the applicant took a day off from work following the accident but that the applicant had a previous history of absences from her employment by reason of her mental health and by reason of illness, as noted in the Toronto Catholic District School Board Absence Record.2
28The applicant received a prescription for Naproxen in 2019, and the prescription summary3 shows the Naproxen was taken by the applicant for approximately a year. However, taking pain medication alone, and within appropriate dosages, does not indicate substance abuse or dependence on prescription drugs. It can not be said, based on a review of the CNR’s that the applicant described a dependence on her healthcare providers or family members following the accident, nor is there a description of the applicant withdrawing from social contacts. In addition, the applicant missed work on the day following the accident, then on October 25, 2019, and for two days in November 2019, and for two days in December 2019. However, this does not amount to a decrease in the applicant’s pre-accident functionality. By reason of the Tribunal finding on a balance of probabilities, that the applicant has failed to demonstrate chronic pain syndrome, the Tribunal finds that the treatment plan completed by Dr. Igor Wildermen, physician, recommending a Chronic Pain Assessment is not reasonable and necessary with reference to the AMA guide in the assessment of chronic pain syndrome.
29I find on a balance of probabilities that the applicant’s pre-existing knee pain and bursitis are not described as limiting her functionality as a result of the accident, nor does the applicant meet any three of the criterion set forth in the AMA Guide earlier referenced. The applicant has offered insufficient evidence that the treatment plan recommended by Dr. Igor Wilderman, for a Chronic Pain Assessment, is reasonable and necessary. I agree with the submissions of the respondent that the CNRs of Dr. Brooymans do not contain sufficient evidence to demonstrate, the therapeutic benefit of the treatment plan for a Chronic Pain Assessment as reasonable and necessary.
30On May 13, 2020, MediAssess Evaluations submitted a Treatment Plan OCF-18 to the insurer prepared by Dr. Peter Waxer, psychologist. The treatment plan is for the completion of a Psychological Assessment. The goal of the treatment plan is to return the applicant to the activities of normal living. The treatment plan lists the applicant’s injuries and sequelae including, Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia related to vehicles, and Persistent Somatic Symptom Disorder with Predominant Pain.
31I find by reason of the applicant’s pre-existing psychological condition, and the worsening of her psychological limitations following the accident, as described in the CNR’s of Dr. Brooymans, that the treatment plan of Dr. Peter Waxer, psychologist, recommending a Psychological Assessment, is reasonable and necessary.
32The respondent submits that in the event that the treatment plan OCF-18, prepared by Dr. Peter Waxer, psychologist, is determined by the Tribunal to be reasonable and necessary, that the amount for the preparation of the Psychological Assessment of $2,000.00 should be considered as an issue in dispute. The respondent suggests that the basis for the dispute is that the maximum hourly rate for a psychologist in a non-catastrophic claim, is not referenced or accounted for, as established by The Financial Services Commission of Ontario, Professional Services Guideline Number 03/14 to be the hourly rate of $149.61. I disagree because the OCF-18 was not partially approved on the basis of the cost of the proposed assessment. The OCF-18 in this case was denied by the insurer. S. 25(5)(a) of the Schedule suggests the maximum amount payable for an assessment is $2,000.00 plus tax. The amount of the treatment plan aligns with s. 25(5)(a) of the Schedule, therefore, I will keep the amount at $2,000.00.
ORDER
33The Tribunal finds that:
- The applicant’s injuries were improperly classified in accordance with the definition of “minor injury” under the Schedule and that the applicant is not bound by the funding limits of the MIG.
- The applicant is not entitled to $2,486.00 as a reasonable and necessary expense, paid by the respondent insurer, for a treatment plan/ OCF-18 for a Chronic Pain Assessment, proposed by MediAssess Evaluations Incorporated in an OCF-18 completed by Dr. Igor Wildermen, on June 11, 2020.
- The applicant is entitled to $2,486.00 as a reasonable and necessary expense, paid by the respondent insurer, for a treatment plan/ OCF-18 to complete a Psychological Assessment, submitted on May 22, 2020, by MediAssess Evaluations Incorporated.
- The applicant is not entitled to interest payable in accordance with s. 51 of the Schedule from the date of denial of the two treatment plans since they were not incurred and there is $3,300.00 of the MIG remaining.
Released: March 9, 2023
Janet Rowsell Adjudicator