Citation: S.M. vs. Certas Home and Auto Insurance Company, 2020 ONLAT 19-007817/AABS

Released Date: 07/09/2020

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:

S.M.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Glen Bushi

For the Respondent:

Aly Pabani

HEARD:

Via written submissions

OVERVIEW

1S.M. was injured in an accident on July 26, 2016, and sought various benefits, including a non-earner benefit, from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Certas denied the benefits on the basis that S.M. sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline (“MIG”). S.M. disagreed and submitted an application to the Tribunal for resolution of the dispute.

2According to the parties, the Case Conference Order dated January 20, 2020 does not accurately reflect the issues in dispute for this written hearing. The Order indicates that the issues in dispute were a non-earner benefit, a treatment plan for psychological services and interest. However, S.M. withdrew her non-earner benefit claim as it was statute-barred. In its submissions, Certas confirmed that the non-earner benefit was withdrawn and that the applicability of the MIG, the treatment plan and interest were live issues.

ISSUES IN DISPUTE

3The following issues remain in dispute:

i. Did the applicant sustain predominantly minor injuries as a result of the accident that are subject to treatment within the MIG?

ii. Is the applicant entitled to a medical benefit in the amount of $3,849.09 for psychological services recommended by Auxilium Wellness Centre in a treatment plan (“OCF-18”) submitted on April 11, 2018 and denied on April 17, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

result

4I find S.M. sustained predominantly minor injuries and has not met her burden to demonstrate that she requires treatment beyond the MIG. Although S.M. has not exhausted the approved funding within the MIG, I find the OCF-18 in dispute is not reasonable and necessary or incurred.

ANALYSIS

Applicability of the MIG

5The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500, although an applicant may escape the MIG if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find S.M. has not satisfied her burden to prove that her accident-related impairments or psychological conditions warrant treatment beyond the MIG.

6While S.M. does not directly address the MIG, in support of her position that her pre-existing psychological impairments warrant removal for psychological treatment, she relies on the clinical notes and records of her family physician, Dr. Huang, from 2013 to 2019, the psychological consultation report of Dr. Vitelli, clinical notes from the Salvation Army Women’s Counselling Centre, a prescription summary and an OCF-18 recommending psychological services. On these documents, she submits that she reported anxiety, depression and stress prior to the accident and these symptoms were exacerbated post-accident. She further relies on Dr. Vitelli’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood to justify removal from the MIG and for support that the OCF-18 is reasonable and necessary.

7In response, Certas submits that S.M.’s arguments are not supported by the medical evidence, her subjective complaints or her post-accident pursuit of treatment. To that end, Certas points to the fact that S.M has yet to exhaust the funding in the MIG, despite her submission that she requires further treatment beyond it for her psychological impairments. With respect to her pre-existing psychological impairments, while there is mention in the file that she has suffered from depression since 2013 (and submits that she has struggled with depression and anxiety since she was 17) and has been prescribed antidepressants for many years, Certas submits that S.M has not provided compelling evidence to demonstrate that her psychological symptoms were exacerbated by the accident, that she has functional impairment as a result, or that her impairments prevent maximal medical recovery from her accident-related impairments if she is kept within the MIG. Certas relies on the s. 44 report of Dr. Mandel, who found no basis to diagnose an accident-related psychological impairment, determined that S.M.’s impairments were properly within the MIG and who found that the treatment plan was not reasonable and necessary.

8I agree with Certas. On review of the clinical notes, while it is clear that S.M. has been struggling with depression and emotional issues for some time, I find that she has not demonstrated how these symptoms were exacerbated by what was, by all accounts, a very minor accident. Further, despite Dr. Vitelli’s diagnosis, I find she has not provided compelling evidence from a medical practitioner explaining why her depression and anxiety prevent maximal medical recovery if she is kept in the MIG. Having experienced psychological or emotional issues in the past is not sufficient for removal from the MIG in the present, especially so where there is no compelling evidence that these issues have been exacerbated as a result of the accident.

9Indeed, it is difficult to reconcile S.M.’s position (and Dr. Vitelli’s opinion) that she requires treatment beyond the MIG when she has not yet even exhausted the $3,500 in funding that is available to her or where she has not incurred any of the plan. In the three notes from her sessions with Salvation Army from two years post-accident, there is a single mention of how S.M. feels the accident “still impacts her daily living” with no further details. Instead, the notes reflect concerns over her previous partner, past abuse and an ODSP application. On the evidence, while it is apparent that S.M. is experiencing many stressors in her home and personal life that are causing her anxiety, with great respect, there is limited evidence that these stressors came as a result of her accident-related impairments or were exacerbated by same.

10I prefer the psychological report prepared by Dr. Mandel over the report prepared by Dr. Vitelli as it is more proportional to the bulk of the evidence. While I am alive to Dr. Vitelli’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, other than an interview based on S.M.’s subjective complaints, it is unclear what other medical documents, if any, were reviewed by Dr. Vitelli. In contrast, the list of medical documentation reviewed by Dr. Mandel is considerable and pre-dates the accident, which, in my view, offered Dr. Mandel a more complete picture of S.M.’s pre-accident psychological health and how it is less likely that it was attributable to the accident than it was to several other factors. On this basis, I question how Dr. Vitelli was able to definitively trace S.M.’s psychological symptoms to the accident and not to the myriad other factors when there is ample evidence that she has struggled with depression for many years and is facing many other stressors. The other stressors include: her mother’s failing health, her living situation, her personal life, her familial relationships with her brother and daughter, her finances, etc. On review of the clinical notes, there are limited references to the accident and no reporting from S.M. that her psychological and emotional stressors were caused by same.

11On the evidence, there is also limited indication that S.M.’s alleged impairments are affecting her daily function or recovery, which is the test she must meet to escape the MIG. The clinical notes from Dr. Huang reference her personal and familial struggles but do not indicate that these symptoms prevent her from recovering or that treatment within the MIG prevents her from achieving her maximal medical recovery. Dr. Vitelli’s answers to the specific questions at the end of his report are also, in my view, so vague that they are unreliable. He states that S.M.’s psychological diagnosis “appears to exceed the Minor Injury Guideline” without further explanation. He recommends Driver Desensitization treatment even though S.M. reports no issues with driving. He also recommends 10 to 12 sessions of cognitive behavioural therapy because it “may be beneficial in helping her regain her former level of functioning” but does not articulate what aspects of her function he is referring to or how it would assist her. The body of the report references significant problems adjusting to pain issues and an “altered lifestyle” but does not identify what was altered nor does he attribute this alteration to the accident. Dr. Vitelli also recommends a pain management program, but where S.M. reported her pain as a 1/10 to Dr. Mandel, I am not prepared to accept that this subjective pain complaint has a psychological component necessitating treatment.

12While S.M. relies on Dr. Vitelli’s opinion that she should be removed from the MIG, the Tribunal would have benefitted greatly from substantive submissions on this issue speaking to why removal from the MIG was required to treat her specific impairments and how her lifestyle has been altered as a result of the psychological impairments arising from the accident, as alleged. All of this is to say that I do not find, on the evidence and in the absence of direct submissions, that S.M.’s psychological impairments warrant removal from the MIG or that her pre-existing issues were exacerbated by same, as she has not provided compelling evidence to meet her burden of proof.

Psychological Treatment

13S.M. also claims entitlement to payment for a treatment plan proposing $3,849.09 in psychological treatment for cognitive behavioural therapy, planning, preparation, materials and documentation. As the MIG limits have seemingly not been exhausted, I find, in any event, that the proposed treatment is not reasonable and necessary.

14On review, I find many of the items identified in the OCF-18 cannot be considered to be reasonable and necessary. I find the proposed cost to be somewhat gratuitous considering S.M. has only exhausted half of her MIG funding. Dr. Vitelli’s notes do not indicate why $948.05 is reasonable and necessary for the non-treatment and non-OCF-18 expenses. Indeed, I query what the difference between “planning, service” and “preparation, service” are and why these items are listed separately in the OCF-18 with separate costs. Further, there is no explanation for the necessity of $200 for educational material or what exactly that is, aside from the notation “treatment manual”. With regards to the actual treatment, it is unclear why 12 one and a half hour sessions are so needed instead of 10 or 12 one-hour sessions when the report states that S.M. “may benefit from 10-12 sessions”. The goals of the plan are to return S.M. to her pre-accident levels of psychological functioning, but again, it is unclear what Dr. Vitelli thinks that entails since there were no external records that he reviewed.

15S.M.’s sole substantive submission on the reasonableness and necessity of this specific treatment plan is that “she continues to suffer from extensive psychological impairments that are impacting her daily activities” as a result of the accident. There is no discussion of how the extensive impairments affect her daily activities, what her daily activities are, why or how the treatment will specifically help return her to these activities, whether she has incurred any of the treatment, why the cost of same is reasonable, etc. In the absence of this analysis, I find S.M. has fallen well short of meeting her burden to prove that the treatment is reasonable and necessary. Accordingly, I follow the opinion of Dr. Mandel and I find that it is not.

CONCLUSION

16S.M. sustained predominantly minor injuries as a result of the accident and has not demonstrated that her pre-existing condition warrants removal from the MIG. The treatment plan is not payable as S.M. has not met her burden to prove that it is reasonable and necessary or incurred. As no benefits are overdue, interest does not apply.