A.B-H. v. Travelers, 2018 CanLII 13173

Licence Appeal Tribunal Decision

Date: 2018-01-25 Tribunal File Number: 17-001856/AABS Case Name: 17-001856 v Travelers

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:

A.B-H. Applicant

and

Travelers Respondent

DECISION

ADJUDICATOR: Gemma Harmison

Written Submissions by: For the Applicant: Nader Fathi, paralegal For the Respondent: Stanislav Bodrov, counsel

Written Hearing: August 17, 2017

OVERVIEW:

1The applicant was involved in a motor vehicle accident on August 14, 2015. She sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).

2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) disputing the respondent’s denial of a treatment plan for the cost of a psychological assessment.

3The parties participated in a case conference in May 2017 but they were unable to resolve their dispute and they consented to a written hearing to determine the matter.

4The case conference order listed the disputed treatment plan as the sole issue to be decided at this hearing. However, it is clear from the parties’ respective submissions that the applicability of the Minor Injury Guideline (“MIG”), and treatment within the MIG cap of $3,500, is the primary point of contention. The applicant’s submissions indicate that the disputed treatment plan was denied by the respondent on the basis that the applicant sustained minor injuries treatable within the limits of the MIG.¹ In its submissions, the respondent maintains its position that the applicant sustained minor injuries and further submits that the disputed treatment plan was submitted at a time when the MIG limit was reached.²

5The applicant submits that she should not be confined to treatment within the MIG for two reasons: (1) her psychological assessor diagnosed her with an accident-related psychological impairment, and (2) she has pre-existing physical and psychological injuries which she asserts have worsened since the accident.

6The respondent contends that the report from the applicant’s psychological assessor is unreliable, and it also relies on the psychological report of its Insurer Examination (IE) assessor who concluded that the applicant’s psychological impairment is not accident-related and is the result of other factors. Further, while the respondent acknowledges and does not dispute that the applicant has numerous pre-existing physical and psychological conditions that were documented before the accident, it argues that the applicant has failed to provide compelling evidence that any of those pre-existing conditions prevent her from recovering within the MIG treatment cap.

ISSUES TO BE DECIDED:

7Based on the case conference order and the submissions of the parties, I have determined the issues in dispute to be as follows:

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500 and to treatment within the MIG?
2. If the answer to issue one is no, is the applicant entitled to payment for the cost of examination for a psychological assessment in the amount of $2,200.00 recommended by Dr. Romeo Vitelli of Promed Rehabilitation Clinic in a treatment plan dated October 4, 2016, denied by the respondent on January 4, 2017?
3. Is either party entitled to costs of the proceeding?³

RESULT:

8Based on the totality of the evidence before me, and for reasons set out below, I find that:

1. The applicant sustained predominantly minor injuries as defined under the Schedule;
2. Since the answer to issue one is yes, the applicant is not entitled to the disputed treatment plan for the cost of a psychological assessment;
3. Neither party is entitled to costs of the proceeding.

ANALYSIS AND REASONS:

The Accident

9Details of the accident are found in the applicant’s OCF-1 (Application for Accident Benefits)⁴, the psychological consultation report of the applicant’s assessor Dr. Romeo Vitelli, dated November 29, 2016, following his assessment of the applicant on October 4, 2016⁵, and the IE psychological report of Dr. Douglas Saunders, dated November 29, 2016, following his assessment of the applicant on November 18, 2016⁶.

10The applicant was rear-ended by another vehicle while she was stopped at a red light. She was wearing her seat-belt when the collision occurred. The airbags in her vehicle did not deploy. There is no mention of her striking her head as a result of the impact. She reported that she did not suffer a loss of consciousness as a result of the accident. After the collision, she exited her vehicle independently, obtained the other driver’s information, and then continued to her workplace. She reported that later that day she felt stiffening and soreness in her neck and lower back. She attended a walk-in clinic, however, the exact date of her attendance at the walk-in clinic is not apparent, and records from the walk-in clinic were not submitted as evidence for the hearing.

11At the time of the accident, the applicant was 36 years old and employed at a call center, working 40 hours per week. She did not miss any time from work as a result of the accident and continued working her normal duties.

12The applicant received physiotherapy services following the accident. Physiotherapist Mohannad Bakri completed an OCF-23 dated September 14, 2015⁷ and an OCF-18 dated December 21, 2015.⁸ In those documents, the physiotherapist listed the applicant’s accident-related injuries as chronic post-traumatic headache; sprain and strain injuries of the shoulder joint, lumbar spine and knee; and whiplash-associated disorder (WAD2). In both documents, the physiotherapist indicated that the applicant’s injuries were predominantly minor and could be treated within the MIG.

13A September 22, 2015 clinical note and record by the applicant’s physician⁹ indicates that the applicant complained of ongoing neck and back pain since the accident the previous month and that she requested a re-fill of medication (baclofen). No clinical notes and records referencing the accident—either before or after the visit of September 22, 2015—were submitted by the applicant.

Applicant’s Pre-Existing Conditions

14The applicant has a number of documented pre-existing conditions. Both parties submitted documents in their evidence for the hearing attesting to this. A review of those documents indicates that the applicant’s pre-existing conditions include:

• Diagnosed at age 2 with Acute Lymphoblastic Leukemia (ALL) which was treated with radiation and chemotherapy.
• Diagnosed in 2005 with a large bifrontal falcine meningioma (brain tumor) which was surgically excised that same year. The applicant attended an Acquired Brain Injury (ABI) program from 2005 until 2006.
• Reoccurrence of the tumor in 2008 requiring treatment and hospitalization for two months and re-introduction to the ABI program, and a further reoccurrence of the tumor in 2011 requiring further surgery. The applicant was followed in the ABI program until 2012.
• A prior motor vehicle accident on September 11, 2008, as a result of which the applicant sustained injuries described within the documents submitted to include intracranial injury, exacerbation of her brain injury symptoms, chronic pain in the lower back and hips, chronic headaches, neck and shoulder muscle spasms, as well as emotional symptoms including sleep difficulties and anxiety.
• Emotional symptoms and difficulties including depression following the loss of her sister, as well as stress and anxiety due to parental emotional and physical abuse while living in the family home.
• Sleep apnea.

Issue 1 – Applicability of the MIG

15The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 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 an injury.” The terms “strain”, “sprain”, “subluxation” and “whiplash associated disorder” are also defined in section 3.

16Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits to $3,500 for minor injuries.

17Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 limit if there is compelling evidence that the pre-existing medical condition will prevent the insured person from achieving maximal recovery if limited to the $3,500 MIG cap.

18The burden of proof for establishing entitlement to medical benefits in excess of the $3,500 limit for minor injuries rests with the applicant. This burden of proof was confirmed by the Ontario Court of Justice (Divisional Court) in the 2015 case of Scarlett v. Belair Insurance Company Inc. 2015 ONSC 3635.¹⁰

The MIG and Psychological Impairments

19The applicant relies on the report of her psychological assessor, Dr. Vitelli, who diagnosed the applicant with “Adjustment Disorder with Mixed Anxious and Depressed Mood” attributable to the subject accident.

20The respondent submits that Dr. Vitelli’s assessment report is “absolutely unreliable” because, despite the evidence attesting to the contrary, in his report he:

• Noted the applicant reported satisfactory healing from her brain tumor surgery in 2005 and her leukemia;
• Noted the applicant did not report any abuse in her family;
• Noted the applicant was not involved in an accident prior to the subject accident.

21The respondent submits that the disputed OCF-18 completed by Dr. Vitelli also “demonstrates [his] unfamiliarity” with the applicant, since he answered “unknown” when asked whether the applicant had any prior disease, condition or injury.

22The respondent therefore submits that Dr. Vitelli was not in a position to provide an accurate opinion with respect to the applicant’s psychological state, or the causation of her psychological impairment.

23The respondent also relies on the IE report of its own psychological assessor, Dr. Douglas Saunders, who assessed the applicant on November 18, 2016. The respondent submits that, unlike Dr. Vitelli, Dr. Saunders was provided with and did review the applicant’s medical records prior to the subject accident. Dr. Saunders diagnosed the applicant with “mild to moderately elevated symptoms of anxiety and depression that met the criteria for [psychological] impairment”, but concluded that such impairment was not “solely, directly and causally related to the [subject accident]” and that her impairment is the result of “psychosocial factors including problems in her relationship and larger social environment.” Dr. Saunders further opined that, from a psychological perspective, there was no evidence of a pre-existing condition that was aggravated or exacerbated as a result of the subject accident.

24In reply submissions, the applicant submits that Dr. Vitelli did not have access to the applicant’s full medical records “due to its extensive nature”. The applicant contends that Dr. Vitelli nonetheless was able to diagnose her based on his expertise and experience as a registered psychologist of 29 years. In reply to Dr. Saunders’ opinion that the applicant’s psychological impairment is unrelated to the subject accident, the applicant submits that “[a]though her symptoms may be related to her social and domestic situation, it has been exacerbated by the accident.”

25The essential difference between the applicant’s psychological assessor and the respondent’s IE psychological assessor is one of causation. The applicant’s psychological assessor opined that the applicant’s psychological impairment is as a result of the subject accident. The respondent’s IE psychological assessor opined that the applicant’s psychological impairment is unrelated to the subject accident.

26Having considered the evidence and submissions of the parties, I find that the applicant has failed to prove that she suffers a psychological impairment attributable to the subject accident.

27I place little weight on Dr. Vitelli’s diagnosis of a psychological impairment as being attributable to the subject accident because:

• In his assessment report, he confirmed that he did not have any of the applicant’s medical records available for review at the time he assessed the applicant;
• At the top of page 3 of his report, Dr. Vitelli specifically noted that his “diagnostic and treatment recommendations are based on the medical documentation available at the time of the assessment, the [applicant’s] self-report during the clinical interview and the objective measures administered. Any additional information or a determination that the [applicant] was not candid in her self-report may alter the opinions expressed in this report.”
• Multiple notations in his report have been proven incorrect and inaccurate in the medical evidence submitted by both parties for the hearing.

28I prefer and place more weight on the report of the respondent’s IE assessor, Dr. Saunders, who concluded that the applicant’s psychological impairment is not accident-related. Dr. Saunders was provided with and did review medical records relating to the applicant’s pre-accident medical history. As a result, I find he was better situated and better informed when he conducted his assessment of the applicant, and therefore find his opinion as to causation to be more reliable and more persuasive.

29The applicant’s causation argument also included an assertion that the accident aggravated her pre-existing impairments. However, as will be discussed in greater detail below, the applicant did not provide me with persuasive evidence that there was in fact aggravation of impairment caused by the subject accident.

30Based on the evidence before me, I find that the applicant has failed to prove that she suffered an accident-related injury or impairment that falls outside of the MIG.

The MIG and Pre-Existing Conditions

31The applicant contends that her pre-existing physical and psychological conditions have worsened since the subject accident and that she should be removed from the MIG as a result.

32The respondent does not dispute that the applicant has numerous pre-existing conditions, but submits that she has failed to provide compelling evidence that any of those pre-existing conditions prevent her from recovering within the MIG. It points to the OCF-23 completed by the applicant’s physiotherapist in which no pre-existing conditions were identified; the disputed OCF-18 completed by Dr. Vitelli who answered “unknown” when asked whether the applicant had any prior disease, condition or injury; and its IE assessor, Dr. Saunders, who concluded that the applicant did not have any pre-existing conditions that were aggravated or exacerbated as a result of the subject accident.

33In its submissions, the respondent has pointed me to two Tribunal decisions¹¹ in which the adjudicators deciding those cases found that evidence of a pre-existing condition, alone, is not sufficient to remove an applicant from the MIG and rather the evidence must demonstrate that the pre-existing condition prevents the achievement of maximal recovery if subject to the MIG. I agree. The MIG¹² expressly states that the “existence of any pre-existing condition will not automatically exclude a person’s impairment from the [MIG]” and that it “is intended and expected that the vast majority of pre-existing conditions will not do so.” The MIG makes clear that compelling evidence is required to demonstrate that a pre-existing condition will prevent the person from achieving maximal recovery.

34The majority of the applicant’s evidence consisted of medical records pre-dating the subject accident, which certainly establishes that the applicant has pre-existing conditions. But establishing the existence of pre-existing conditions does not end the matter nor end the analysis; there must be evidence to show that the pre-existing conditions prevent the applicant from achieving maximum recovery if confined to the MIG.

35In this case, the applicant specifically contends that her pre-existing conditions have worsened since the subject accident, as asserted in paragraph 13 of her written submissions. What is lacking, however, is actual evidence to support that submission and assertion. In my view, there would need to be some evidence to demonstrate a worsening of her pre-existing conditions since the subject accident and/or some evidence that her pre-existing conditions prevents her maximal recovery. Based on my review of the evidence submitted, I find no such persuasive evidence. For example:

• The respondent included in its evidence a hospital report regarding the applicant’s appointment on August 24, 2015 at a pediatric long-term affects clinic¹³ where the applicant has been followed in relation to her leukemia and brain tumors. Notably, this visit took place ten days after the subject accident. The subject accident is not mentioned in the report. The report notes that on examination that day, the applicant was “well-appearing” and “in no apparent distress”;
• The applicant did not submit as evidence any clinical notes and records of her physician beyond her visit on September 22, 2015. I find it reasonable to expect that, had there been a worsening of the applicant’s pre-existing physical and/or psychological conditions, she would have consulted her physician and there would be subsequent records from her physician to that effect;
• The one medical document in evidence that the applicant specifically directed me to in paragraph 13 of her submissions as being supportive of her assertion of a worsening of her pre-existing conditions does not, based on my review, establish a worsening of her pre-existing conditions. That report, which is also from the pediatric long-term effects clinic, is in relation to her appointment there on August 22, 2016¹⁴ (one-year post accident). The report makes no reference whatsoever to the subject accident. The report refers to the applicant’s surgeries for brain tumors in 2008 and 2011 and indicates that the applicant was last assessed in March of 2016 and “everything was felt to be stable”. The report also refers to what appears to be a recent accident at a grocery store where the applicant slipped on some water and as a result was experiencing concussion-type symptoms. Finally, the report indicates that during the appointment the applicant reported relationship difficulties with her spouse. The report’s author indicated that the applicant “has a lot of stress in her life and a lot of psychosocial issues”; that the applicant was “in agreement to discussing her current situation” with a psychologist at that clinic; and that the applicant did speak with that psychologist. No records from the clinic beyond the August 22, 2016 report were submitted as evidence by the applicant.
• The only other post-accident report submitted by the applicant as evidence was that of the report from her psychological assessor, Dr. Vitelli, which I have already addressed. He attributed the symptoms she complained of and his diagnosed psychological impairment to the subject accident, and not to a worsening of her pre-existing conditions.
• The respondent’s IE psychological assessor, Dr. Saunders, who did have access to and did review the applicant’s medical records, concluded that the applicant did not have any pre-existing conditions that were aggravated or exacerbated as a result of the subject accident.

36Based on the evidentiary record before me, I find that the applicant has failed to provide compelling evidence to demonstrate that her pre-existing conditions worsened as a result of the accident or otherwise prevent her from achieving maximal recovery within the MIG.

Issue 2 – Treatment Plan in Dispute

37Since I have found that the applicant sustained predominantly minor injuries as defined by the Schedule, I do not need to determine whether the treatment plan is reasonable and necessary.

Issue 3 – Costs

38Rule 19.1 of the Tribunal’s Rules of Practice and Procedure (the “Rules”) provides that a party may make a request to the Tribunal for costs where it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith [emphasis added]. Rule 2.17 of the Rules defines a “proceeding” as being “the entire Tribunal process from the start of an appeal to the time the matter is finally resolved”.

39Rule 19.4 further sets out a requirement that a party’s submission on costs shall “set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.”

40Neither party provided any submissions on the issue of costs. I therefore have no particulars before me from either party as to any conduct by the other party in the proceeding before the Tribunal that would warrant an order of costs under Rule 19.

41Accordingly, neither party is entitled to costs.

CONCLUSION:

42For reasons set out above, I find that:

1. The applicant sustained predominantly minor injuries as defined under the Schedule;
2. Since the answer to issue one is yes, the applicant is not entitled to the disputed treatment plan for the cost of a psychological assessment;
3. Neither party is entitled to costs of the proceeding.

Footnotes

1. 1Applicant’s written submissions, paragraph 3b.
2. 2Respondent’s written submissions, paragraph 11.
3. 3The parties each sought costs of the proceeding in their submissions for the hearing.
4. 4Respondent’s Document Brief, Tab B-1
5. 5Applicant’s Submissions, Tab Q
6. 6Respondent’s Document Brief, Tab C-24
7. 7Respondent’s Document Brief, Tab B-2
8. 8Respondent’s Document Brief, Tab B-3
9. 9Applicant’s Submissions, Tab O.
10. 10Respondent’s Book of Authorities, Tab 2
11. 11B.W. v. Royal SunAlliance Insurance, 2017 CanLII 19203 (ON LAT) and M.M. and Wawanesa Mutual Insurance Company, 2016 CanLII 93132 (ON LAT), Respondent’s Book of Authorities Tabs 3 and 4.
12. 12Minor Injury Guideline, Superintendent’s Guideline No. 01/14, heading 4, “Impairments that do not come within this Guideline”.
13. 13Respondent’s Document Brief, Tab C-21
14. 14Applicant’s Submissions, Tab P