Citation: Saheb vs. Zenith Insurance Company, 2021 ONLAT 20-000497/AABS

Released Date: 01/28/2021

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:

Raja Saheb

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Paul Barrafato, Counsel

For the Respondent:

Ryland MacDonald, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on September 25, 2018 when the vehicle she was riding in was rear-ended and t-boned in a dual impact collision. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”).

2The respondent, Zenith Insurance Company, determined that the applicant’s injuries fell within the Minor Injury Guideline² (“MIG”) and denied the benefits she claimed above the $3,500.00 finding limit for the treatment of minor injuries. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

ISSUES IN DISPUTE

3I am to decide the following issues:

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 limit in the Minor Injury Guideline?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment recommended by Novo Medical Services in a treatment plan (OCF-18) dated August 30, 2019?

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

RESULT

4The MIG does not apply to the treatment of the applicant’s accident-related injuries, which include a torn meniscus and exacerbation of her pre-existing persistent depressive disorder (“PDD”), because they are not predominantly minor as defined in s. 3 of the Schedule.

5The applicant has established that the proposed Psychological Assessment is reasonable and necessary as a result of the accident and she is entitled to this benefit. She is also entitled to interest calculated in accordance with the Schedule.

ANALYSIS

The MIG does not apply

6To be eligible for the benefit claimed in this application, the applicant must demonstrate that her accident-related injuries are not predominantly minor as defined in the Schedule. If her injuries are not predominantly minor, she will be eligible to receive up to $65,000.00 in medical and rehabilitation benefits provided she can establish, pursuant to s. 15(1) of the Schedule, that the benefits are reasonable and necessary as a result of the accident.

7Section 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.”

8Section 18(2) of the Schedule provides that an applicant who sustained predominantly minor injuries in an accident may be entitled to treatment outside the $3,500.00 MIG funding limit if they can establish that they suffer from a pre-existing medical condition, documented by a health practitioner before the accident, that will prevent them from achieving maximal recovery from their minor injuries if subject to the MIG.

9The applicant bears the onus of establishing, on a balance of probabilities, that she is entitled to treatment outside the MIG, and that the benefit she seeks is reasonable and necessary as a result of the accident.³

Pre-existing and accident-related injuries

10The applicant has a history of PDD. She has been under the care of Dr. Youssef Slataroff, Psychiatrist, since 2015. Dr. Slataroff’s clinical notes and records from June 6, 2018 and July 23, 2018, the applicant’s last two follow-up appointments with him before the accident, indicate the applicant’s depression was “in remission.”

11The applicant sustained several physical injuries in the accident for which she received follow-up care by her family physician, Dr. Mazin Rassam. Two days after the accident, the applicant complained to Dr. Rassam of right neck pain, lower back pain, headaches and right hip pain. In March of 2019, she complained of left knee pain. Dr. Rassam ordered an x-ray to rule out osteoarthritic changes on March 4, 2019. The x-ray revealed “no significant OA changes.” Dr. Rassam then referred her for an MRI of the left knee, which showed a radial tear of the left knee medial meniscus. The MRI report notes the applicant’s history of ongoing pain since the accident in September 2018.

12On July 30, 2019, the applicant was seen by Dr. Anthony Adili, Orthopedic Surgeon, to address the applicant’s complaint of left knee pain, which she reported as persistent and progressively worsening over the approximately nine months since the accident. Dr. Adili reviewed the MRI and diagnosed left knee patellofemoral chondromalacia and a left knee minimally symptomatic medial meniscal tear. Dr. Adili noted that in addition to significant arthritic symptoms, the applicant was experiencing mechanical symptoms of locking in her left knee approximately once per month.

13As a result of the accident, the applicant also experienced exacerbation of her pre-existing PDD. When the applicant visited her treating psychiatrist, Dr. Slataroff, on March 7, 2019, her first follow-up appointment since the accident, Dr. Slataroff noted that the applicant’s depression had relapsed. He ordered supportive psychotherapy and prescribed Wellbutrin. Dr. Slataroff’s clinical notes and records reference the accident as the cause of the applicant’s relapse on July 11, 2019, stating, “she reports multiple symptoms following the MVA.” On August 30, 2019, the date the treatment plan for the Psychological Assessment was submitted, Dr. Slataroff notes that the applicant’s PDD remained in relapse.

14The applicant submits that the MIG does not apply because she sustained injuries in the accident that do not fall within the definition of a minor injury under the Schedule. She points to the medial meniscus tear in her right knee and to the exacerbation of her depressive symptoms. She also submits that she is entitled to treatment outside the MIG under s. 18(2) of the Schedule because her pre-existing PDD will prevent her from achieving maximal recovery from her accident-related injuries if she is confined to the MIG.

15The respondent submits that the applicant should be held to the MIG. It submits that her right knee injury was not caused by the accident, and that even if it was accident-related, a torn meniscus falls within the definition of a “sprain” in s. 3 of the Schedule. The respondent further submits that the applicant’s post-accident psychological concerns are not a result of the accident. It submits that due to her long-standing psychiatric history, the applicant’s depression would have relapsed regardless of the accident.

16I do not find the respondent’s causation arguments persuasive. I find on a balance of probabilities that the applicant’s PDD relapse was directly caused by the accident. This finding is supported by the clinical notes and records of Dr. Slataroff. On its own, the exacerbation of the applicant’s pre-existing depressive symptoms is a basis for her removal from the MIG because psychological injuries are not contemplated in the definition of a minor injury in the Schedule.

17In addition, I find that a torn meniscus falls outside the definition of a “sprain” in s. 3 of the Schedule. It is not an injury to a tendon or a ligament. The meniscus is neither. The respondent refers me to the Tribunal’s decision in 17-005544 v. Pembridge Insurance⁴ where an applicant, who had a torn meniscus, was held to the MIG. In that decision, the Tribunal found that the tear was not caused by the accident. It also determined that a torn meniscus is neither a partial nor a complete tear of a tendon. This decision is not support for the respondent’s position.

18The respondent submits that the applicant’s knee injury is not a result of the accident. It submits that the applicant’s knee pain was degenerative in nature and not related to any trauma. It submits that Dr. Adili found the torn meniscus to be arthritic in nature. However, this is not exactly what Dr. Adili’s report says. Dr. Adili does discuss the presence of significant arthritic symptoms, but he also diagnosed the applicant with chondromalacia, and he does not expressly find that the tear to the meniscus was degenerative in nature. The x-ray report ordered by Dr. Rassam in March of 2019 also ruled out osteoarthritic changes to the applicant’s knee. The respondent submits that Dr. Adili makes no finding that the accident caused the applicant’s knee injury, but Dr. Adili’s report does reference the accident as background relevant to the applicant’s primary complaint.

19I reject the respondent’s submission that the applicant would have relapsed regardless of the accident because of her long-standing history of depression. It is clear from the clinical notes and records of Dr. Slataroff that the applicant’s symptoms had been in remission, and that the accident was an intervening event that triggered a renewed onset of her depressive symptoms. The respondent has not raised doubt that the accident had a direct contributing effect on the applicant’s relapse.

20Even if her injuries were predominantly minor, the MIG would not apply to the applicant because she suffers from a pre-existing medical condition documented by a health practitioner before the accident that would prevent her from achieving maximal recovery from minor injuries if subject to the MIG funding limit. The clinical notes and records of the applicant’s treating psychiatrist constitute compelling evidence of this.

The disputed Psychological Assessment

21I have found that the applicant experienced an exacerbation of her pre-existing psychological condition as a result of the accident. This is supported in the clinical notes and records of both her family physician and treating psychiatrist.

22The respondent submits that the proposed assessment is duplicative of the services being provided to the applicant by Dr. Slataroff. There is no evidence that this is the case. In March of 2019, Dr. Slataroff recommended supportive psychotherapy as treatment for the applicant’s PDD. I see no evidence that the applicant had access to this treatment through OHIP or another source. Nor has the respondent presented evidence that treatments or therapeutic interventions the Psychological Assessment might identify would be otherwise available to the applicant through Dr. Slataroff. It is clear from his records that he managed the pharmaceutical aspects of the applicant’s care, but the records show a pattern of only periodic consultations. Dr. Slataroff’s recommendation is evidence that to obtain more routine psychotherapeutic support, the applicant would need to look elsewhere.

23The respondent denied the proposed Psychological Assessment based on Dr. Watson’s Section 44 IE assessment, conducted November 28, 2019. Dr. Watson could not validate the applicant’s reported symptoms because he was “unable to rule out the impact of poor engagement, symptom aggravation/amplification, feigning, or dissimilation”. In other words, he did not find the applicant’s self-reported symptoms credible. Dr. Watson could not identify any diagnosable psychological condition.

24Dr. Watson’s opinion is of limited relevance to the analysis of whether the proposed treatment plan is reasonable and necessary. Although he could not identify a diagnosable condition, the applicant already had at least one diagnosis of a psychological condition (Dr. Rassam’s clinical notes and records identify not only depression but also post-traumatic stress disorder in the applicant’s known history). And, as I have found, that psychological condition was exacerbated by the accident.

25I need not consider the respondent’s submissions on the reliability of the psychological pre-screen report submitted along with the treatment plan to find that the applicant was suffering from psychological symptoms warranting further investigation and potential treatment. The objective medical evidence alone supports this finding.

26To conclude, this is a case of the evidentiary record clearly supporting entitlement to benefits beyond the MIG. The applicant has met her onus in establishing that the medical benefit sought in this application is reasonable and necessary as a result of the accident.

Compliance with Section 38 of the Schedule

27The respondent submits that the applicant and the health professional who completed the Treatment and Assessment Plan (OCF-18) failed to comply with the requirement, set out in s. 38(3) of the Schedule, to sign the plan prior to submitting it. It submits that pursuant to s. 38(2), the plan is therefore not payable.

28The applicant submits that the Treatment and Assessment Plan (OCF-18) was signed by the applicant and by both health professionals who prepared the plan. She presents evidence to that effect.

29I have reviewed the OCF-18 and conclude that it is compliant with s. 38 of the Schedule.

ORDER

30The MIG does not apply. The applicant is entitled to $2,200.00 for the cost of a Psychological Assessment plus interest calculated in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Superintendent’s Guideline No. 01/14.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635.
4. 42018 CanLII 112120 (ON LAT) at para. 10.```