Licence Appeal Tribunal File Number: 22-003477/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:
Shaista Maqbool
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Raymond Selbie
Written Submissions by:
For the Applicant: Dean Trinetti, Counsel
For the Respondent: Derek Greenside, Counsel
Written Hearing: Heard by way of written submissions
OVERVIEW
1Shaista Maqbool, the applicant, was involved in an automobile accident on January 31, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties attended a case conference on January 23, 2023, but were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
3Further to the Order of Adjudicator Hartwick dated January 23, 2023, the following issues remain in dispute:
a. Are the applicant’s injuries predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)? Note: The parties agree the MIG limits have been exhausted.
b. Is the applicant entitled to $256.75 ($1,556.75 less $1,300.00 approved) for physiotherapy services proposed by PhysioCare & Rehab in a treatment plan/OCF-18 (“plan”) submitted June 11, 2020, and denied July 6, 2020?
c. Is the Applicant entitled to $2,485.99 for a psychological assessment proposed by Hydrohealth Evaluations in a treatment plan/OCF-18 (“plan”) submitted April 16, 2021, and denied June 30, 2021?
d. Is the applicant entitled to $3,526.25 for psychological services proposed by Hydrohealth Evaluations in a plan submitted October 1, 2021, and denied October 25, 2021?
e. Is the applicant entitled to $1,936.02 for physiotherapy services proposed by PhysioCare & Rehab in a plan submitted September 28, 2020, and denied October 1, 2020?
f. Is the applicant entitled to $2,460.00 for a chronic pain assessment proposed by Hydrohealth Evaluations in a plan submitted June 21, 2022, and denied July 4, 2022?
g. Is the applicant entitled to interest on any overdue payment of benefit?
RESULT
4I find that the applicant sustained a chronic pain impairment and a psychological impairment that are not predominantly minor injuries within the definition of the Schedule.
5I find that the applicant is entitled to the medical benefits described in paragraphs 3b, 3c, 3d, 3e, and 3f above together with interest pursuant to s. 51 of the Statutory Accident Benefits Schedule-Effective September 1, 2010, (the Schedule).
6I find that the applicant is entitled to interest pursuant to s. 51 of the Schedule.
ANALYSIS
The Minor Injury Guideline (MIG)
7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A ‘minor injury’ is defined in s. 3(1) of the Schedule as, ‘one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury’. The terms, strain, sprain, subluxation, and whiplash associated disorder are as defined in the Schedule.
8Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate with compelling evidence that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide a psychological impairment or chronic pain with a functional impairment. The burden to establish entitlement to coverage beyond the $3,500.00 cap rests on the applicant on the balance of probabilities.
9The respondent submitted that applicant’s injuries are not minor based on her pain and psychological findings.
10Psychologically, the applicant has been diagnosed by Dr. Weinberg with Specific Phobia: Situational Type (highway driving). Her former family doctor, Dr. Jivanji diagnosed PTSD and anxiety with recurrent thoughts of the accident and her anxiety when driving a vehicle.
11Further, in the records of PhysioCare & Rehab, the applicant was diagnosed with acute stress reaction.
12The respondent relies on the Psychological Insurer Examination Report of Dr. Nikkhou, dated June 25, 2021, to support its position to keep the Applicant within the MIG. However, Dr. Nikkhou indicated that there were validity concerns related to possible over-reporting and under-reporting. Dr. Nikkhou also discussed the possible impact of linguistic and cultural factors on the validity of the test results. However, neither Dr. Nikkhou nor the respondent attempted to reconcile the effect of these concerns when providing this analysis.
13Psychological impairment cannot be treated with the MIG.
14It must also be noted that the applicant’s accident-related physical pains have become chronic, as they have been ongoing for nearly four years since the accident.
15The applicant’s doctors’ records indicate that she continues to complain of back pain and bilateral knee pain. The records of PhysioCare & Rehab indicate that she has chronic pain which is aggravated by activity. Her medical practitioners have indicated that she requires further physical therapy for her accident-related physical injuries.
16I find that the applicant requires treatment outside of the MIG to properly address her physical and psychological accident-related injuries.
The applicant is entitled to the following Medical/Rehabilitation Benefits Physiotherapy Services at PhysioCare & Rehab for $256.75
17On June 11, 2020, PhysioCare & Rehab submitted a treatment plan to the Respondent. The OCF-18 was completed by the health practitioner, Mr. Paramjeet Kaur, for physical therapy services. The respondent denied the treatment plan as it exceeded the MIG and because it was undertaken before the applicant consulted her family doctor. The applicant attended Brampton Civic Hospital after the accident and was advised to follow-up with her family doctor and attend physical therapy. The applicant followed the advice although not in the order given.
18The treatment plan in question lists the applicant’s injury and sequalae information under Part 6, of which the applicant continues to complain. Her medical practitioner continues to recommend physical therapy.
19Sections 14-16 of the Schedule provides that an insurer shall pay for medical and rehabilitation benefits to or on behalf of the applicant so long as the applicant sustains an impairment as the result of the accident, and the expense of the incurred benefit is reasonable and necessary. I find that this treatment meets those criteria.
Psychological Assessment at Hydrohealth Evaluations for $2,485.99
20The OCF-18 was completed by the health practitioner, Dr. Neil Weinberg in his report was submitted April 16, 2021. The applicant was diagnosed with PTSD and anxiety related to the accident. The respondent denied the treatment plan. Dr Weinberg lists the applicant’s injury and sequalae information under Part 6, which includes adjustment disorders. Under Part 4 of the treatment plan, Dr. Weinberg indicated that the applicant’s impairments were not classified as minor injuries. This finding is consistent with that of the applicant’s family doctor, Dr. Jivanji in a follow-up with him on September 14, 2020.
21The respondent denied this treatment plan relying on the respondent’s s.44 Psychological Insurer Examination by Dr. Nikkhou dated June 25, 2021. Dr. Nikkhou raises concerns over possible validity caused by the applicant’s over-reporting or under-reporting and further, that there may be linguistic or cultural factors that impact the applicant’s answers. This opinion is in my finding a two-edged sword which may be applicable to the findings of Dr. Nikkhou as to those of Dr. Juvanji and Dr. Weinberg. I find that on the balance of the evidence provided by the family doctor, Dr. Jivanji and the medical practitioner Dr. Weinberg are more persuasive than that of Dr. Nikkhou.
22I find that pursuant to s. 14-16 of the SABS, this plan was reasonable and necessary.
Psychological Assessment at Hydrohealth Evaluations for $3,526.25
23On October 1, 2021, Hydrohealth Evaluations submitted a treatment plan for psychological therapy completed by Dr Neil Weinberg. The respondent denied the treatment plan. Dr. Weinberg indicated that the applicant’s impairments were Specific Phobia: Situational Type (highway driving) and recommended ongoing anxiety and PTSD treatment.
24The respondent referred to the s.44 examination of Dr. Nikkhou which, as previously set forth in paragraph [21] of this decision and which, for the same reason if not found persuasive to deny payment of this proposed treatment.
25I find pursuant to s.14-16 of the Schedule that this plan was reasonable and necessary.
Physiotherapy Services at PhysioCare & Rehab for $1,936.02
26On September 28, 2020, PhysioCare & Rehab submitted a treatment plan to for physical therapy services. The respondent denied the treatment plan. It notes that she is having difficulty and stress in performing her work, housekeeping, and her activities and that she continues to complain of accident-related physical injuries. Further physical therapy was recommended. The bulk of the evidence from the applicant’s medical practitioners is that she continues to have accident- related injuries which demand further physical therapy.
27The respondent relies on the report of Dr. Hashnat Khan (found at Tab K rather than Tab J as set forth in the respondent’s submissions). This report does not respond to the physiological findings from Physical Care & Rehab, the family doctor, Dr. Jivanji, or health practitioner Paramjeet Kaur. I find on the balance of the evidence provided by the applicant; the findings of Dr. Khan were insufficient to overcome the onus upon the applicant.
28I find on the balance of the medical evidence provided, the plan is reasonable and necessary.
Chronic Pain Assessment at Hydrohealth Evaluations for $2,460.00
29On June 21, 2022, Dr. Grigory Karmy of Hydrohealth Evaluations submitted a chronic pain assessment treatment plan. The respondent denied the plan. Dr. Karmy indicated that the applicant’s impairments were not classified as minor injuries.
30Under Part 8, Dr. Karmy indicated that the applicant was exhibiting symptoms consistent with chronic pain syndrome characterized by pain, which Dr. Karmy opined that approximately 29 months post-accident, the persistent pain had surpassed the acute stages and had become chronic.
31The respondent relies on the paper review of Dr. Alborz Oshidari to deny the treatment plan as the assessment did not reveal a somatic pain disorder.
32I find on the balance of the evidence; the in-person assessment by Dr. Karmy is more reliable than a paper review conducted by Dr. Oshidari and as such, the disputed assessment is reasonable and necessary.
Interest
33Considering that all the treatment plans have been found reasonable and necessary and that the applicant’s injuries both physical and psychological require treatment outside the Minor Injury Guidelines, it follows that the applicant is entitled to interest on these plans pursuant to s.51 of the Schedule.
ORDER
34I find and order that:
i. The applicant sustained chronic pain and psychological impairment that are not predominantly minor injuries as defined in the Schedule;
ii. The applicant is entitled to $256.75 ($1,556.75 less $1,300.00 approved) for physiotherapy services proposed by PhysioCare Rehab in a treatment plan/OCF-18 (“plan”) submitted June 11, 2020;
iii. The applicant is entitled to $2,485.99 for a psychological assessment proposed by Hydrohealth Evaluations in a plan submitted April 16, 2021;
iv. The applicant is entitled to $3,526.25 for psychological services proposed by Hydrohealth Evaluations in a plan submitted October 1, 2021;
v. The applicant is entitled to $1,936.02 for physiotherapy services proposed by PhysioCare & Rehab in a plan submitted September 28, 2020;
vi. The applicant is entitled to $2,460.00 for a chronic pain assessment proposed by Hydrohealth Evaluations in a plan submitted June 21, 2022;
vii. The applicant is entitled to interest on any overdue benefits in accord with s.51of the Schedule.
Released: March 14, 2024
Raymond Selbie
Adjudicator