Licence Appeal Tribunal File Number: 22-008377/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:
Tyler Skanes
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sarah Sheaves
APPEARANCES:
For the Applicant:
Natalia Poliakova, Paralegal
For the Respondent:
Nicholas Mester, Counsel
HEARD:
In Writing
OVERVIEW
1Tyler Skanes, the applicant, was involved in an automobile accident (“accident”) on April 10, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was 24 years old at the time of the accident. He was rear-ended while traveling westbound on Highway 401.
3The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
4The issues in dispute are:
i. 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,626.02 for physiotherapy services proposed by Sante Circle Health in a treatment plan (“plan”) dated August 25, 2021?
iii. Is the applicant entitled to $2,900.00 for a psychological assessment proposed by Dr. Frank in a plan dated July 9, 2021?
iv. Is the applicant entitled to $5,668.28 for psychological services proposed by Dr. Frank in a plan dated September 2, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant has proven, on a balance of probabilities, that his injuries are not predominantly minor because of psychological impairments. Therefore, he is not subject to the MIG limit.
6The applicant is not entitled to the physiotherapy services proposed by Sante Circle Health, as he has not proven this treatment was reasonable or necessary.
7The applicant is entitled to $2,200.00 for a psychological assessment proposed by Dr. Frank.
8The applicant is entitled to $5,668.28 for psychological services proposed by Dr. Frank.
9The applicant is entitled to interest on any overdue payments for incurred treatment or assessment, as outlined above.
ANALYSIS
10Section 3(1) of the Schedule defines a 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 an injury”.
11Psychological impairments do not fall within the injuries listed in the definition of a minor injury. The Tribunal has determined in the past that chronic pain with functional impairment and psychological conditions may result in removal from the MIG.
12The applicant has the burden of proving that the MIG does not apply to his accident-related impairments and, if successful, also has the burden of demonstrating entitlement to the benefits he has claimed on a balance of probabilities.
13The applicant must outline how the goods and services in dispute are reasonable and necessary because of the motor vehicle accident of April 10, 2021. This involves making submissions on each issue in dispute and directing the adjudicator to evidence that supports his submissions.
The applicant does not have a minor injury
14The applicant’s injuries do not fall within the MIG because of psychological impairments.
15The applicant relies on the records of his treating physiotherapist and family doctor. He also places emphasis on the records of Dr. Frank, psychologist, to suggest his injuries do not fall within the MIG.
16The applicant’s submissions focussed on the psychological impairments as a basis to be removed from the MIG.
17The respondent submitted that all the complaints made to the family doctor were strictly physical in nature, as evidence of a lack of psychological impairment.
Evidence of psychological impairments
18The physiotherapist’s records indicate the applicant was complaining of memory, concentration, and sleep impairments after the accident. He was also reporting daily headaches, often more than one per day.
19On an assessment for post-concussion symptoms completed by the physiotherapist, the applicant endorsed feeling depressed, frustrated, and irritable.
20The applicant complained of memory loss to his family doctor six weeks after the accident.
21The applicant participated in a screening interview with a psychologist on July 7, 2021. He reported nightmares, sleep difficulty, driver/passenger anxiety, and feelings of helplessness and hopelessness.
22The applicant participated in a psychological assessment on July 28, 2021. There is a diagnosis of “somatic symptom disorder with predominant pain” and “adjustment disorder with mixed anxiety, depression and post-traumatic stress.”
23There is no medical evidence to contradict the psychological diagnoses that were made. The respondent elected not to perform any assessments of the applicant in relation to the benefits he has claimed.
24The respondent argued the assessment report is unreliable because there is a typo regarding the date of the accident, and because Dr. Frank’s associate completed the assessment. I do not find that these are sufficient reasons to disregard the diagnosis made by qualified medical practitioners.
25I do not find the fact that an associate completed the assessment under the supervision of a qualified practitioner who signed off on the findings would nullify the report and its findings. The fact that the associate was performing the assessment and was being supervised is indicated at the outset of the report.
26I will also add that psychological associates are listed as practitioners in the Professional Service Guideline, and this tells me they are contemplated as legitimate service providers under the Schedule.
27It is clear that the applicant underwent psychological testing to formulate a diagnosis. The results of the testing were provided and there has been no argument made that the testing was invalid, improper, or flawed.
28The applicant has provided evidence, that on a balance of probabilities, he had a psychological impairment because of the accident. No evidence to contradict the diagnosis has been submitted.
29As I have found there is medical evidence of psychological impairment, the applicant’s injuries do not fall within the MIG.
The applicant is not entitled to the physiotherapy services proposed by Sante Circle Health
30Section 15 of the Schedule says that an insurer shall pay for all reasonable and necessary medical expenses.
31Section 16 of the Schedule says that an insurer shall pay for all reasonable and necessary rehabilitation expenses.
32The applicant has not proven that the plan proposed by Sante Circle Health in the amount of $2,626.02 was reasonable and necessary. He is not entitled to this benefit.
33The plan requests ten sessions of physiotherapy, and eight sessions each of massage therapy and chiropractic treatment. The listed goals are pain reduction, increased strength, endurance, and range of motion.
34I have not been provided with submissions from the applicant about why the plan was reasonable and necessary at the time it was written. There are no submissions on the cost of the plan. The applicant did not point to any medical records or evidence that supported the need for ongoing treatment as of August 25, 2021.
35There is evidence of a need for treatment in July 2021, as the applicant had a flare up of pain, reported by the treating clinic and family doctor. However, a plan, dated July 13, 2021, was submitted, and approved. After this point, there is no additional medical evidence to confirm a need for ongoing physical treatment.
36By August 25, 2021, the applicant had engaged in nearly four months of consistent treatment for his physical injuries. He has not made any submissions as to why additional treatment was reasonable and necessary. He also has not provided medical evidence that demonstrates the need for ongoing treatment at the relevant time period.
37I find the applicant has not met the burden of proving the plan proposed by Sante Circle Health in the amount of $2,626.02 is reasonable and necessary on a balance of probabilities. The benefit is not payable.
The applicant is entitled to $2,200.00 for a psychological assessment proposed by Dr. Frank
38The applicant is entitled to $2,200.00 for the psychological assessment proposed by Dr. Frank.
39Section 25 of the Schedule says that an insurer shall pay the reasonable fees for the cost of examinations and shall not pay more than $2,000.00 plus tax for fees and expenses for conducting any one assessment or examination, and for preparing reports in connection with same.
40The applicant submitted that the symptoms reported to Dr. Frank in the screening interview on July 7, 2021, establish that a psychological assessment was reasonable and necessary.
41The respondent submitted that the referral source for the assessment should be a significant factor that determines whether the request for the assessment is reasonable and necessary. It pointed to case law from the Tribunal to support this assertion. It also suggested there was no supporting evidence from other treatment providers to corroborate the need for an assessment.
42The parties have not directed me to any evidence or information about who made the referral for this assessment that would support the submissions made by the respondent.
43I have found that the applicant does not fall within the MIG. There is medical evidence from the family doctor of reported memory loss. There is medical evidence from the physiotherapist also pointing to memory and concentration impairments, and a report of depressive symptoms. There is medical evidence from a screening interview indicating various mental health complaints. All these symptoms suggest an assessment would be reasonable and necessary to investigate the complaints arising from the accident. For this reason, I find the assessment was reasonable and necessary, on a balance of probabilities, at the time the plan was written.
44The parties did not make submissions about the cost of this plan. However, I find the cost exceeds the amounts payable under the law.
45I noted above that the Schedule says an insurer shall not pay more than $2,000.00 for an assessment. I understand the customary fee for completion of the plan is $200.00, as outlined in the Professional Service Guideline.
46The plan requested funding of $2,700.00 for the assessment and $200.00 for completion of the plan. This is more than the amount allowable under the Schedule. Therefore, the benefit payable is $2,000.00 for the assessment and $200.00 for completion of the plan, for a total of $2,200.00, plus applicable HST.
47The applicant has demonstrated that the psychological assessment of Dr. Frank was reasonable and necessary, on a balance of probabilities. However, the applicant is only entitled to partial payment of the plan at the Schedule and Guideline rates. Therefore, he is entitled to $2,200.00 for the assessment and completion of the plan.
The applicant is entitled to $5,668.28 for psychological services proposed by Dr. Frank
48The applicant is entitled to the plan for psychological treatment in the amount of $5,668.28, proposed by Dr. Frank on September 2, 2021.
49The plan requests sixteen sessions that are ninety minutes in length. It also requests funding for consultation, progress evaluation and educational materials. The stated goal was to improve the ability to cope with pain, reduce the applicant’s psychological symptoms, and provide methods to address sleep and relaxation.
50The applicant submitted that the diagnoses arising from the psychological assessment demonstrate that the plan for psychological treatment was reasonable and necessary.
51The respondent submitted that the diagnoses are extreme because they are not supported by records from other treating practitioners. As noted above, the respondent argued the assessment was “significantly flawed” because it was performed by an associate under Dr. Frank’s supervision and there was a typo related to the date of the accident, suggesting that a template was used.
52I take note that the assessment of Dr. Frank is the only opinion available to me regarding psychological impairment. There is no medical evidence that contradicts the diagnoses or suggests that the symptoms and impairments would not require treatment.
53The respondent has not pointed me to any substantive concern that would render the contents of the report, in particular the testing outlined therein, unreliable. The report is corroborated by the applicant’s complaints to other medical professionals.
54The evidence contained in the psychological assessment establishes that some psychological treatment is reasonable and necessary. The applicant has not had any other psychological treatment to address his symptoms and impairments.
55The parties did not make submissions about whether the cost of this plan was reasonable.
56Dr. Frank did attach submissions to the treatment plan to justify the costs. He outlined each itemized expense being claimed and why he believed it was necessary. Neither party took issue with his submissions.
57As the parties have not submitted that the costs of the plan are unreasonable or would not be necessary, I find the applicant is entitled to the full amount claimed. The costs of the plan appear to fully adhere to the Professional Service Guideline rates.
58The applicant has established, on a balance of probabilities, that he is entitled to psychological treatment proposed by Dr. Frank in the amount of $5,668.28. This is based on the diagnosis of somatic symptom disorder, and adjustment disorder.
Interest
59Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payments for incurred treatment or assessment.
ORDER
60For the reasons provided, I order as follows:
i. The applicant does not fall within the MIG.
ii. The applicant is not entitled to the physiotherapy services proposed by Sante Circle Health in a plan dated August 25, 2021.
iii. The applicant is entitled to $2,200.00 for the psychological assessment of Dr. Frank, proposed in a plan dated July 9, 2021.
iv. The applicant is entitled to $5,668.28 for psychological treatment proposed by Dr. Frank in a plan dated September 2, 2021.
v. The applicant is entitled to interest on any overdue payments for incurred treatment or assessment, as set out above.
Released: September 10, 2024
Sarah Sheaves
Adjudicator