Allaham v. Coseco Insurance, 2021 CanLII 64239

Citation: Allaham v. Coseco Insurance, 2021 ONLAT 19-008731

Released Date: 07/20/2021

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:

Elias Allaham

Applicant

and

Coseco Insurance

Respondent

DECISION

ADJUDICATOR:

Anita John

APPEARANCES:

For the Applicant:

Elias Allaham, Applicant

Frank E. McNally, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on November 16, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹ He was driving a 2016 Dodge Ram pick-up truck on Hawthorne Road attempting to merge onto Hunt Club Road in Ottawa, Ontario and was rear ended by a 2011 BMW.

2The respondent denied the applicant’s claims for psychological treatment because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore fall within the Minor Injury Guideline (“the MIG”). The applicant’s position is the opposite.

3The applicant therefore applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)

4If the applicant’s position is correct, then I must address the issue of whether the medical treatment claimed is reasonable and necessary.

5If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by the Schedule.

ISSUES

6The issues to be decided by the Tribunal are:

(i) Are the applicant’s injuries predominantly minor injuries 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 a medical benefit, in the amount of $3,890.64 for psychological treatment, recommended by Dr. Emily Sibbald, in a treatment plan submitted on May 25, 2018, and denied by the respondent on November 7, 2018?

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

RESULT

7I find the applicant has demonstrated, on a balance of probabilities, that his psychological impairments justify treatment beyond the MIG.

8I find the applicant is entitled to payment for the cost of the psychotherapy as it is reasonable and necessary.

9The respondent is liable to pay the applicant interest on overdue payments in accordance with section 51 of the Schedule.

ANALYSIS

10Subsection 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 and includes any clinically associated sequelae to such an injury. The MIG defines in detail what these terms for injuries mean.

11As the Divisional Court held in Scarlett v. Belair Insurance,² the applicant has the onus of establishing on a balance of probabilities his entitlement beyond the MIG limits.

12The applicant does not claim that his physical injuries fall outside the s. 3(1) definition of minor injury. He claims exemption from the MIG based on a psychological injury.

Does the applicant have psychological impairments that remove him from the MIG?

13The applicant claims that he sustained a psychological injury as a result of the accident, and that places his injury outside of the MIG.

14Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. This principle was stated in the Tribunal’s decision in Sandeep Gandhi vs. Aviva General Insurance,³ and I am persuaded to apply it to this case.

15I find that the applicant has a psychological injury that takes him out of the MIG.

16To support the claim, the applicant relies on the notes, reports and opinions of several medical practitioners as follows:

(a) Dr. Degala Krishnaprasad

17In terms of the applicant’s pre-accident history, Dr. Krishnaprasad, psychiatrist, noted in his report, dated March 16, 2012, that the applicant was complaining of anxiety, stress and low mood. He discussed his childhood in Syria, describing it as a negative atmosphere with conflict and war. Dr. Krishnaprasad diagnosed the applicant with generalized anxiety disorder with panic attacks by history.

18In a follow up consult note dated May 29, 2012, Dr. Krishnaprasad noted that the applicant’s generalized anxiety and panic attacks were being treated well by his dosage of Cipralex.

(b) Dr. Silva Gideon

19On March 14, 2013, during an annual health examination, Dr. Gideon, family doctor, continued to prescribe the applicant Cipralex and Clonazepam, as well as various medications for gastrointestinal issues.

20On August 4, 2017, Dr. Gideon, completed an OCF-3, Disability Certificate, diagnosing

a. moderate whiplash injury

b. moderate bilateral paralumbar spasms

c. left knee - soft-tissue injury (resolved now)

d. anxiety and depression elements increased – now starting to feel better 8/2017 post-MVA

e. gastro-reflux increased post-MVA…now better

21On January 17, 2018, Dr. Gideon referred the applicant to attend psychotherapy. The basis of Dr. Gideon’s referral was an increase in depression elements and an exacerbation of childhood PTSD brought on by the applicant’s other collision-related injuries. The referral note stated: “42-year old male, married, 2 children, is referred for psychotherapy. After he had the car accident in 11/2016 and he is still symptomatic with his neck and back pains in spite of physiotherapy he has found himself to be more symptomatic re depressive elements and his epigastric discomfort. He stopped getting benefit from the medications and this was also interfering with his productivity. Since the medications were no longer helping him and he became more depressed and unfortunately, the trauma experienced in his youth during war crimes could no longer be contained. This became more apparent after all the testing for the epigastric pains were negative and when asked about stressors – marital stressors due to his aches and pains and lack of energy and libido. We were only able to touch on the topic of his previous childhood trauma and if possible, please help with psychotherapy for his PTSD.”

(c) Dr. Emily Sibbald

22On May 25, 2018, the applicant was assessed by Dr. Sibbald, psychologist, which resulted in a psychological assessment report. In terms of anxiety, Dr. Sibbald’s report diagnosed the applicant with post-traumatic stress disorder, other specified anxiety disorder specifically features of Social Anxiety Disorder, Panic Disorder and Health Anxiety. Dr. Sibbald’s report states as follows:

Anxiety

23In terms of pain symptoms, the applicant stated that he felt his heart racing, chest pain, difficulties breathing and feeling that he is going to die. The applicant stated his symptoms became increasingly difficult to manage following his 2016 motor vehicle accident. His symptoms were assessed by his family doctor and he was told that he was having panic attacks. The applicant relayed that he experiences infrequent panic attacks, approximately once per month. He stated that his anxiety and frequency of panic attacks worsened 2-3 months following his November 16, 2016 accident. The applicant noted overall increased irritability and tension. He described verbal expressions of anger.

Trauma

24The applicant reported weekly physical and psychological abuse by classmates while he lived in Syria between the ages of 10 and 16 years. He described reacting to these recollections with physical reactivity to anxiety such as choking sensations. He described having an increased startle response. He stated that these symptoms worsened following a previous motor vehicle accident in 2004. The applicant indicated that these symptoms were reduced about 80% after approximately one year after the 2004 accident and that he could function in daily and occupational tasks. He indicated that these symptoms worsened following his November 16, 2016 accident.

25During the applicant’s assessment, five psychometric tests were administered: Personality Assessment Inventory (“PAI”), Accident Fear Questionnaire (“AFQ”) Posttraumatic Stress Disorder Checklist (“PCL-5”), Pain Catastrophizing Scale (“PCS”) and Pain Drawing. The intended goal of the tests was to better understand the type and severity of the applicant’s psychological impairments to determine proper treatment.

PAI

26The scores suggest he is experiencing anxiety particularly regarding the cognitive and physiological aspects of anxiety such as increased worry, tension, sweaty palms and shortness of breath. He may adopt less helpful strategies to manage the anxiety such as phobic avoidance and increased vigilance of triggers of anxiety His scores also suggest that he is experiencing specific fears and anxiety related to traumatic stress. His scores also suggest he is experiencing significant depressive symptomology, particularly the physiological aspects of depression such as decrease in energy, sexual interest, loss of appetite, and psychomotor slowing. He may also experience more of the affective aspects of depression such as increased feelings of sadness and lost of interest. His scores suggest that he is experiencing rapid mood swings with increased irritability.

AFQ

27The applicant’s total score on the AFQ-PA subscale was 66, which is above the cut-off of symptoms consistent with a diagnosis of accident phobia. He reported having nightmares about the accident, fearing for his life, is nervous before trips, gets easily upset in the car, and drives less than he had previously. He reports avoidance of driving under certain weather conditions, hearing news of accidents, and seeing wounds and injuries; instead, he takes public transportation.

PCL-5

28His total score was 77, which is above the cut-off and suggests symptoms consistent with a diagnosis of PTSD.

PCS

29The applicant`s total score was 52, which is the maximum score of the test and suggests a high risk of developing disability to due to chronic pain.

Pain Drawing

30The drawing depicted nociceptive symptoms involving an aching/throbbing sensation in his forehead and rear of his head, as well as in the rear and bilateral sides of his neck, upper back and lower back.

Summary of test findings

31Nevertheless, the test findings are consistent with respect to a depressed and traumatic reaction as well as chronic pain problems.

Formulation and Diagnoses

32In her report, Dr. Sibbald mentioned that the applicant also reported having a depressive episode and chronic pain and a trauma reaction to childhood events. He also reported having a depressive episode and chronic pain following a previous motor vehicle accident in 2004, after which the symptoms worsened, and it became more difficult for the applicant to fully engage in his occupational, familial and recreational activities.

33Overall, Dr. Sibbald found that his pattern of results suggests he meets diagnostic criteria for post-traumatic stress disorder and other specified anxiety disorder, specifically features of Social Anxiety Disorder, Panic Disorder, and Health Anxiety. These appear to be pre-accident, although the symptoms worsened following his 2016 motor vehicle accident. Dr. Sibbald went on to state that his accident and related stressors have caused significant psychological response and his pattern of results suggest that he meets the criteria for Major Depressive Disorder, Recurrent, Moderate. He also displays features of Somatic Symptom Disorder with Predominant pain and as such it will remain a rule out diagnosis at this time.

Prior and Concurrent Conditions Affecting Treatment

34The applicant reported experiencing a previous depressive episode as well as pre-accident anxiety and a trauma reaction to childhood trauma. These symptoms appear more chronic, negatively impact his current depressive episode and as such, may take longer to treat.

35In her report, Dr. Sibbald stated that the proposed treatment aims to restore function, provide symptom relief, and reduce impairments. There will be focus on resuming activities of normal living and pre-accident work activities. It is recommended that the applicant participate in individual psychological treatment involving cognitive behavioural therapy (CBT) to treat his depressive and anxious reaction to his motor vehicle accident and to further refine his pain management strategies.

36The applicant’s psychological symptoms have been increased in May 2019 after attending the Ottawa Hospital, Civic Campus, for a brain bleed caused by a cavernoma. He underwent right craniotomy. In a report by Dr. John Sinclair, neurosurgeon, at the Ottawa Hospital, Civic Campus Neurosciences Clinic, he noted that the applicant reported issues with anxiety since the surgery. These new health issues further compounded his mental health issues that have been present since the accident and he had an increasing difficult time managing his anxiety without therapy.

37Subsequent to Dr. Sibbald’s report, the applicant sought psychological treatment out of pocket. He attended a brief psychological screening with Dr. Gilles Hebert, psychologist, on November 27, 2019 and then on December 12, 2019 to begin treatment. The applicant provided a self-report and completed basic psychometric testing including the Beck Anxiety Inventory-2 and the Beck Depression Inventory-2 but did not do a comprehensive assessment. The applicant scored 48 on the BDI-2 and 36 on the BAI-2. The sessions did not address diagnosis or causation, but the applicant reports sadness, depression, irritability, frustration, anger, anxiety, panic attacks and suffering from flashbacks. However, I find the fact that the applicant incurred the cost of a psychological treatment to be a compelling indication that his concerns are legitimate and are genuinely affecting him.

38I am persuaded by the Tribunal decision relied on by the applicant, Applicant v. Aviva Insurance Company, 19-002841/AABS.⁴ In that decision, Adjudicator Boyce found the fact that the applicant incurred the cost of the psychological assessment in order to better gauge what he is struggling with to be a compelling indication that his concerns are legitimate and are genuinely affecting him. Incurring the cost, combined with his self-estimate of 90% disability from a psychological perspective, led Adjudicator Boyce to find that removal from the MIG is justified.

The Respondent’s Competing Report, Dr. Ron Frey

39To rebut the applicant’s claim, the respondent relies on a psychological IE report by Dr. Frey, psychologist, dated October 10, 2018, in which the doctor found no evidence of psychological impairment and no basis for the diagnosis reached in the applicant’s psychological reports and consequently no need for psychological treatment.

40The respondent denied Dr. Sibbald’s treatment plan on June 8, 2018, with their reasoning being two-fold: (i) the applicant had reached the medical and rehabilitation benefits limit of the MIG and (ii) it was unclear whether the treatment plan-related injuries were related to the 2016 motor vehicle accident.

41In order to reach his conclusion, Dr. Frey relied almost exclusively on eight psychometric tests: Beck Depression Inventory II (“BDI-II”), Overall Anxiety Severity and Impairment Scale (“OASIS”), Beck Anxiety Inventory (“BAI”), the McGill Pain Questionnaire (Short-Form), PTSD Checklist-Civilian Version (“PCL-C”), Pain Disability Index (“PDI”), Pain Catastrophizing Scale (“PCS”), and Test of Memory Malingering (“TOMM”).

42Based on his assessment, Dr. Frey opined:

In my opinion, the claimant is feigning a psychological impairment(s) for reasons only known to him. His symptom exaggeration does not make it possible to identify a psychological impairment and, as a result, I do not believe there is convincing evidence that is suggestive of a psychological disorder as a direct result of the motor vehicle accident.

43The BDI-II test results demonstrated a patient with a severe clinical depression.

44The OASIS results demonstrated an individual with significant anxiety.

45The McGill Pain Questionnaire showed moderate to severe sensory experiences of pain.

46The PDI test showed that pain significantly interfered with several aspects of the applicant’s life such as family/home responsibilities, recreation and social activities, his sleep and sex life.

47The applicant’s total score on the PCS test fell within the 100th percentile, suggesting that, when compared to a Canadian sample of injured workers, he would be considered at extreme risk for the development of chronicity of catastrophic thinking. Individuals who obtain high scores on the PCS are considered suitable candidates for a behavioural-cognitive intervention that aims to increase activity involvement during the post-injury period and minimize psychological barriers to rehabilitation progress.

48Based on the results of the PCL-C conducted by Dr. Frey, the applicant reported symptoms but did not meet the cut-off for a diagnosis of PTSD. This is the only test where the results do not suggest a psychological diagnosis of PTSD and do not corroborate with the tests conducted by Dr. Sibbald.

49Dr. Frey administered the TOMM, which he concluded demonstrated doubt as to the validity of the applicant’s complaint of memory problems. The test dealt specifically with memory problems which also supports its validity conclusions.

50Dr. Frey rejected the tests’ conclusions and found the test results were not indicative of a psychological diagnosis. Dr. Frey opined that the applicant was not exhibiting behaviour consistent with the diagnoses suggested by the test results. Dr. Frey overrode 6 of 8 tests with his clinical judgment (agreeing with the PCL-C and the TOMM results) to conclude that the applicant was feigning his psychological injuries.

51Based on Dr. Frey’s conclusions in his report, the respondent maintained their denial of Dr. Sibbald’s treatment plan on November 7, 2018.

MALINGERING

52The two competing doctors each took note of the possibility of malingering. Dr. Sibbald noted evidence of answer magnification in the PAI results. Dr. Sibbald also noted that there may be various reasons why magnification may have occurred, as a “cry for help” or an intentional attempt to distort functioning. Dr. Sibbald noted that she would proceed with her analysis with caution. By comparison, Dr. Frey concluded that it was not possible to identify any impairments due to the applicant’s exaggeration or feigning of symptoms.

53I find that Dr. Sibbald was upfront about the possibility of a validity concern with the applicant’s responses. Dr. Sibbald continued her assessment with caution. I find that a psychotherapy assessment requires an in-depth analysis of a multitude of factors. Dr. Sibbald put more weight on evidence from the applicant’s past and current life which was reflected in her testing analysis. Although, it may be possible that there might be some exaggeration in the applicant’s answers, when looked at as a whole, the applicant’s situation allowed Dr. Sibbald to support her final diagnosis.

54I find the applicant’s evidence more persuasive than the respondent’s evidence because:

(i) Dr. Sibbald’s diagnoses were supported by a combination of interview results and objective test scores, which I find convincing. Dr. Frey’s report failed to consider other factors that should have formed part of his analysis on diagnosis and causation. Dr. Frey does not consider the applicant’s past, his current daily impairments and the medical evidence of his treating family doctor. The applicant’s past in Syria is particularly glossed over in Dr. Frey’s report. Comparing this to Dr. Sibbald’s analysis, which found relevant and contributing trauma related to his time in Syria, Dr. Frey’s analysis was of the contrary, suggesting no relevant trauma.

(ii) Dr. Frey’s report does not explain how he reached his conclusions. Clearly, he interviewed the applicant, and focused on his observation that the applicant gave or had “no evidence” of various psychological disturbances from the past. More detailed analysis on the applicant’s history and previous medical records was required.

(iii) I find the evidence that Dr. Krishnaprasad’s diagnosis of generalized anxiety disorder with panic attacks with prescription of Cipralex, an anti-depressant medication, to be persuasive evidence of a psychological impairment. In the past, the applicant was prescribed Cipralex and Clonazepam by treating family physician, Dr. Gideon.

55I am persuaded by the Tribunal decision relied on by the applicant, Applicant v. Aviva Insurance Company, 19-002841/AABS⁵ where the adjudicator found that, while the physical injuries were minor in nature, an applicant who suffered psychological injuries should not remain in the MIG.

56In that decision, Adjudicator Boyce was faced with a similar situation. Aviva criticized the veracity of the findings of the applicant’s expert, Dr. Wagner, arguing that the report diagnoses psychological impairments without conducting validity testing and solely on the basis of the applicant’s subjective self-reporting. Aviva argued that the findings of the two reports are irreconcilable because Aviva’s expert, Dr. Syed, conducted more testing, as her testing involved validity measures where Dr. Wagner’s did not. Dr. Syed critically assessed the applicant’s self-reporting.

57At paragraph 13 of that decision, similar to the case at hand, Aviva argued that despite the consistencies in the applicant’s self-reporting across both reports, the reality of his impairments is revealed by the psychometric testing, which suggests that the applicant is feigning a psychological impairment.

58At paragraph 14 of that decision, Adjudicator Boyce disagreed with the respondent as he found that the applicant’s reporting and the supporting medical evidence showed, on a balance of probabilities, that the applicant suffered from psychological impairments which justified his removal from the MIG. Adjudicator Boyce found the consistency of the applicant’s self-reporting to overcome the findings of Dr. Syed. Adjudicator Boyce found that “the respondent’s expert’s opinion that the applicant does not exhibit any clinical symptoms of depression, anxiety, or post-traumatic stress in the face of [the applicant] consistently self-reporting the opposite to be somewhat disingenuous.”

59In this case, I find that the applicant’s reporting and supporting medical evidence showed, on a balance of probabilities, that the applicant suffered from psychological impairments which justified his removal from the MIG. I find that Dr. Frey’s assessment and analysis was disingenuous as he did not give enough weight to the applicant’s reporting.

Is the treatment plan reasonable and necessary?

60Having determined that the applicant sustained an impairment that justifies removal from the MIG, I turn to an analysis of the treatment plan in dispute. In order for a medical or rehabilitation benefit to be payable under the Schedule, the applicant must demonstrate that it is reasonable and necessary. In paragraph 17 of Applicant v. Aviva, Adjudicator Boyce concluded that the applicant’s treatment plan for psychotherapy was reasonable and necessary as it would identify potential avenues for treatment and to asses his prognosis for recovery. Adjudicator Boyce found that these goals are rather humble and achievable for the cost proposed.

61The treatment plan in dispute here proposes a block of 16 sessions of psychotherapy as necessary to repair and manage the applicant’s psychological injures. Much like Adjudicator Boyce concluded in Applicant v. Aviva, I find that the treatment proposed, is reasonable and necessary, as $3,890.00 is a modest price to pay in order to improve the applicant’s functioning.

62The respondent relies on KT v. Aviva,⁶ which I find to be distinguishable. In that case, the applicant moved to Canada from Albania in 2015. The applicant’s motor vehicle accident happened on August 2, 2016. Before, during and after the motor vehicle accident, the applicant was dealing with his refugee status. He felt his symptoms were exacerbated when his refugee hearing was announced. The evidence did not suggest the applicant’s complaints were exacerbated due to the motor vehicle accident.

63In sharp contrast, the applicant’s trauma was during his childhood and was not substantially affecting his life prior to the 2016 collision. The applicant’s PTSD symptoms began causing problems after the 2016 collision when his other psychological symptoms began becoming more severe. This is exemplified in Dr. Sibbald’s report which makes numerous references to the 2016 collision.

64The respondent also relies on DT v. Wawanesa.⁷ The case is distinguishable in a couple of respects. First, in that case, the applicant’s legal representative neglected to include an argument to have his client released from the MIG. At paragraph 18, it is explained that the MIG argument did not appear in the Case Conference Order nor was the adjudicator asked to make this an issue at the hearing. Nevertheless, submissions were made regarding having the applicant removed from the MIG. To the case at hand, the respondent was given notice as to the MIG issue as it was properly pled in the application.

65Second, in DT v Wawanesa, the applicant failed to provide sufficient evidence to prove that a “pre-existing condition will prevent maximal recovery under MIG limits.”

66To the case at hand, I find that the exacerbation of the applicant’s psychological symptoms should be considered an injury in and of itself, that requires its own specific treatment. Dr. Sibbald’s report describes the applicant’s depressive episode as a 2016 collision specific injury which is made more difficult to treat due to the applicant’s pre-existing psychological symptoms. At p. 7, she states:

[The applicant] reported experiencing a previous depressive episode as well as pre-accident anxiety and a trauma reaction to childhood trauma. These symptoms appear more chronic, negatively impact his current depressive episode and as such, may take longer to treat.

67At paragraph 41 of the respondent’s submissions, the respondent acknowledges the 2016 collision caused an exacerbation. The disagreement between the parties is regarding the severity. I find that the collision exacerbated the applicant’s pre-existing symptoms, leading to significant deterioration of the applicant’s life.

CONCLUSION

68The applicant has demonstrated, on a balance of probabilities, that he sustained psychological impairments that justify removal from the MIG.

69The applicant has established that the disputed psychotherapy treatment plan is reasonable and necessary and therefore he is entitled to it.

70The applicant is entitled to interest according to s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24 [hereinafter Scarlett].
3. 32019 ONLAT 18-007668/AABS, 2019 CanLII 58168 (ON LAT)
4. 42020 CanLII 14484 [hereinafter Applicant v. Aviva Insurance Company].
5. 52020 CanLII 14484.
6. 6K.T. v. Aviva Insurance Co of Canada, 2019 CanLII 76971 (ON LAT)
7. 7D.T. v. Wawanesa Mutual Insurance Company, 2017 CanLII 144648 (ON LAT).