Citation: Roldan v. The Personal Insurance Company, 2022 ONLAT 20-009383/AABS

Licence Appeal Tribunal File Number: 20-009383/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:

Nanette Roldan

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Darcie Sherman, Counsel

For the Respondent:

Angeline Pillay, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Nanette Roldan (the “applicant”) was involved in an automobile accident on May 12, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by The Personal Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The applicant was making a left turn when her vehicle was struck by another car that ran a red light. She alleges that she sustained a psychological impairment, that she suffers from chronic pain, and that the accident aggravated both a pre-existing anxiety condition and an injury to her left shoulder.

3The applicant sought funding for physiotherapy, a psychological assessment, and an orthopaedic assessment. The respondent denied the benefits and assessments on the grounds that she sustained a predominantly minor injury as defined in s. 3 of the Schedule, and that she was therefore limited to $3,500.00 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline (the “MIG”).

4The applicant seeks determinations that she is not subject to the $3,500.00 limit on benefits and treatment under the MIG, and that she is entitled to the benefits and assessments in dispute with interest.

ISSUES

5The issues are as follows:

1. Did the applicant suffer a predominantly minor injury as defined in s. 3 of the Schedule?

2. Is the applicant entitled to an income replacement benefit of $400.00 per week from September 21, 2018 to date and ongoing?

3. Is the applicant entitled to medical benefits for physiotherapy proposed by MacKenzie Medical Rehabilitation Centre in the following amounts:

i. $1,977.05, proposed in a treatment and assessment plan (“OCF-18”) dated August 1, 2018; and

ii. $1,384.70, proposed in an OCF-18 dated September 11, 2018?²

4. Is the applicant entitled to the cost of the following assessments proposed by Princeton Hills Medical Assessment Inc.:

i. $2,055.32 for a psychological assessment, proposed in an OCF-18 dated August 13, 2018;³ and

ii. $2,520.00 for an orthopaedic assessment, proposed in an OCF-18 dated August 13, 2018?

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

6In an email to the Tribunal dated October 22, 2021, the applicant advised that she had withdrawn the claim for an income replacement benefit.

RESULT

7The applicant withdrew her claim for an income replacement benefit.

8The applicant sustained a psychological impairment due to the accident. As she sustained a non-minor injury, she is not subject to the $3,500.00 limit on medical and rehabilitation benefits and to treatment under the MIG.

9The applicant is entitled to part of the cost of the psychological assessment proposed in the OCF-18 dated August 13, 2018. She has not established that she is entitled to benefits for physiotherapy or the cost of the orthopaedic assessment.

10The applicant is entitled to interest with respect to the psychological assessment as set out below.

ANALYSIS

Did the Applicant Sustain a Predominantly Minor Injury?

11Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG.

12A minor injury is defined in s. 3 of the Schedule 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.”

13Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500.00 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

14The onus is on the applicant to prove that her injuries are not subject to treatment under the $3,500.00 limit on benefits and the MIG.⁴

15The parties agree that the applicant sustained sprains and strains, which fall within the definition of minor injury in s. 3 of the Schedule. The applicant argues that she sustained two non-minor injuries: a psychological impairment and chronic pain. She also argues that she had a pre-existing anxiety condition and a left shoulder injury that were aggravated by the accident.

16The respondent argues that the applicant has not met her onus of proving these claims. With respect to the alleged psychological impairment, it relies on the independent assessment report of Mr. F. Salerno, a psychologist, dated November 8, 2018.⁵ It argues that the applicant never obtained psychological or psychiatric treatment, and that according to her collateral benefits file, the only treatment she obtained after January 2019 was two sessions of massage therapy in September 2019 and another in August 2020.⁶

17For the reasons that follow, I find that the applicant sustained a psychological impairment due to the accident. It is therefore not necessary to determine whether the applicant’s alleged chronic pain constitutes a non-minor injury, or whether she has a pre-existing medical condition that prevents her from achieving maximal medical recovery from her accident-related injuries subject to the $3,500.00 limit on benefits and treatment under the MIG.

Did the Applicant Sustain a Psychological Impairment?

18Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that she had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.⁷

19The applicant argues that she reported experiencing anxiety and disturbed sleep to her family doctors, namely Dr. M. Ameen at an appointment on May 16, 2018, and Dr. A. Araujo at an appointment on May 24, 2018.⁸ She states that at the latter appointment, Dr. Araujo diagnosed her with “anxiety neurosis disorder” and prescribed medication for her psychological symptoms.⁹ The respondent relies on Mr. Salerno’s opinion that the applicant exhibited mild psychological symptoms, the breadth and severity of which fell below the threshold for a diagnosable psychological impairment.¹⁰

20I find that the applicant suffered a psychological impairment due to the accident. It is apparent from her family doctors’ clinical notes that she was experiencing noteworthy psychological symptoms after the accident. Dr. Ameen’s note of May 16, 2018 lists “anxious and sleep disturbed” among the applicant’s reported symptoms.¹¹ According to Dr. Araujo’s note of May 24, 2018, the applicant reported delayed sleep latency, being afraid to drive, and tensing up at times.¹² She was tearful at the appointment due to “extra stress and [being a] single parent.”¹³ Under the heading “Diagnosis,” Dr. Araujo stated “[a]nxiety neurosis.”¹⁴ He prescribed Cymbalta to assist her with stress, pain, and sleep, and recommended that she obtain a psychological assessment and mental health counseling.¹⁵

21At the independent assessment, the applicant told Mr. Salerno that her mental health was no longer a significant issue and that she did not require psychological treatment. However, when one looks behind these assurances at the substance of the information she provided, her symptoms were clearly still significant:

1. She became tearful when she recounted the accident and said that she may cry if she describes it in “vivid detail.”¹⁶ For that reason, she requested that her co-workers not ask about the accident when she returned to work;¹⁷

2. She felt fear and anxiety when driving. She reported that her hands may perspire, as a passenger she will sometimes press a phantom brake, check the car’s blind spot, and caution the driver, and she has never returned to the site of the accident;¹⁸ and

3. She continued to have difficulty falling asleep, and was taking melatonin twice a week and watching boring movies to get to sleep.¹⁹

22It is understandable why the applicant would downplay the significance of her psychological symptoms. People are reluctant to admit that they suffer from mental illness, to others and to themselves. Seeking treatment can be seen as weakness or self-indulgence, including by the person seeking the treatment. People may lack insight into the nature of their illness and the extent to which it affects their lives. Many of the statements quoted in Mr. Salerno’s report are telling. For example, she said she took three days off after the accident because she was “crying all day, most of the time,”²⁰ but when asked about her mood over the past four weeks, she said “I feel I am getting better. Before I was too emotional.”²¹

23Although the applicant told Mr. Salerno on October 24, 2018 (the date of the independent assessment) that she was better and no longer required psychological treatment, she had submitted the August 13, 2018 OCF-18 for a psychological assessment. The respondent commissioned Mr. Salerno to assess (1) whether the applicant had suffered a non-minor psychological injury, and (2) the reasonableness and necessity of the September 11, 2018 OCF-18 for physiotherapy, which listed injuries including “other sleep disorders; nervousness; other anxiety disorders; acute stress reaction.”²² The applicant filed this application to establish that she suffered a psychological impairment, and that the psychological assessment proposed in the August 13, 2018 OCF-18 is reasonable and necessary.

24I do not accept Mr. Salerno’s opinion that the applicant’s psychological symptoms were mild and did not amount to a psychological impairment. The only psychological symptom that Mr. Salerno noted in the “summary and opinion” section of his report is that that the applicant “exhibited brief affective distress” when describing the accident.²³ Otherwise he referred to factors that mitigated the seriousness of her symptoms, including that she denied the need for psychological treatment and reported improvement since the accident.²⁴ In my view, the applicant’s psychological symptoms were more significant than a brief display of distress, and they belie her assurances that she has recovered and no longer needs treatment. It is also important to weigh these assurances in light of the fact that she was meeting Mr. Salerno for the first time in the context of an independent assessment arranged by her insurer.

25In fairness, it appears that Mr. Salerno was not provided with the clinical notes and records of the applicant’s family doctors. The applicant told Mr. Salerno that she visited her family doctor regarding pain and anxiety approximately six times after the accident, but it is likely that she downplayed the significance of these visits to some extent as she did her symptoms.²⁵ Mr. Salerno might have better appreciated the state of her mental health at the time had he seen Dr. Araujo’s clinical note of May 24, 2018 in particular.

26The respondent argues that the applicant must not have sustained a psychological impairment because she never obtained psychological or psychiatric treatment. I disagree. It is apparent from Mr. Salerno’s report that she was ambivalent about such treatment, even after she submitted the August 13, 2018 OCF-18. She told him that she did not obtain treatment immediately after the accident even though she admitted that her psychological symptoms were concerning.²⁶ In another telling statement, she said that she “felt like it” at the time, but that she is “okay right now” and only requires therapy for her physical injuries.²⁷ Her ambivalence is also apparent in Dr. Araujo’s clinical note of May 24, 2018, which states that she “will consider” obtaining a psychological assessment even though she was in obvious distress.²⁸ I find that on a balance of probabilities, she abstained from treatment out of reluctance, and not because such treatment was unnecessary.

27The respondent argues that the applicant must not have sustained a psychological impairment because she reported to Mr. Salerno that she stopped taking the Cymbalta prescribed by Dr. Araujo after two weeks. This is another example of a telling statement. She did not say that she stopped taking it because her symptoms had resolved, but because she “wanted to fight it off [her]self” and did not want to “mask” her symptoms with psychotropic medication.²⁹

28I conclude that the applicant sustained a psychological impairment due to the accident.

Is the Applicant Entitled to the OCF-18s in Dispute?

29Given that the applicant sustained a non-minor injury, she is not limited to $3,500.00 in medical and rehabilitation benefits. The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15, and for the reasonable and necessary costs of assessments. The onus is on the applicant to prove that the OCF-18s in dispute are reasonable and necessary.

30The applicant claims benefits for physiotherapy, and the cost of a psychological assessment and an orthopaedic assessment. She argues that it is simply apparent from the evidence that she is entitled to these services, and does not make any specific submissions regarding why they are reasonable and necessary. The respondent argues that she has not met her onus of proving that they are reasonable and necessary. It relies on Mr. Salerno’s report and the independent assessment report of Dr. S. Dessouki, a physiatrist, dated November 8, 2018.³⁰ Dr. Dessouki opined that the applicant does not suffer from any objective findings of musculoskeletal impairment due to the accident, and that she does not require any further treatment or assessments.³¹

31I find that the psychological assessment proposed in the OCF-18 of August 13, 2018 is reasonable and necessary except for the $60.00 proposed for the cost of transportation.

32Given that the applicant sustained a psychological impairment, an assessment is warranted to better understand her psychological condition and what treatment may be appropriate. Dr. Araujo recommended a psychological assessment at the May 24, 2018 appointment.³² I give weight to his recommendation for two reasons. First, as one of the applicant’s family doctors, he was familiar with her personality and her medical history. Second, he made the recommendation after seeing the applicant in person when her psychological symptoms were evident.

33Based on the OCF-18 and the maximum hourly rate of $149.61 for psychologists in cases of non-catastrophic impairment,³³ the assessment would consist of a clinical diagnostic interview (two hours), psychological testing (2.5 hours), consultation with other treating health professionals (one hour), review of external file materials (one hour), drafting a report and plan for treatment (4.5 hours), and a feedback interview with the applicant (one hour). I find that these items and the times allocated for them are reasonable and necessary, as is the cost of $200.00 for preparation of the OCF-18 in accordance with the Professional Services Guideline. The $60.00 proposed for the applicant’s transportation to and from the assessment is not reasonable and necessary. A round trip from the applicant’s home address to the treatment provider appears to be less than 50 kilometres, and therefore does not qualify as an “authorized transportation” expense within the meaning of s. 3 and the Transportation Expense Guideline.³⁴ As the total proposed cost of the assessment is $2,055.32, I find that she is entitled to $1,995.32.

34I find that the applicant has not established that she is entitled to benefits for physiotherapy. The OCF-18s dated August 1, 2018 and September 11, 2018 appear to actually be for chiropractic treatment and massage therapy. I disagree that it is apparent from the evidence without further explanation that the applicant is entitled to these services. The applicant has not identified any evidence demonstrating that they are reasonable and necessary, and does not refute Dr. Dessouki’s opinion that she does not require further treatment. Consequently, she has not met her burden of proof.

35I find that the applicant has not established that she is entitled to the cost of an orthopaedic assessment. The applicant has not identified what potential musculoskeletal issues the assessment is intended to investigate, has not demonstrated why such an assessment is reasonable and necessary, and does not refute Dr. Dessouki’s opinion that no further assessments are required. Consequently, she has not met her burden of proof.

Is the Applicant Entitled to Interest?

36The applicant is entitled to interest with respect to the psychological assessment (less the $60.00 for transportation) pursuant to s. 51 of the Schedule. As the applicant is not entitled to the other OCF-18s in dispute, she is not entitled to interest with respect to those OCF-18s.

ORDER

37As the applicant has sustained a non-minor injury, she is not subject to the $3,500.00 limit on medical and rehabilitation benefits and treatment under the MIG.

38The applicant is entitled to $1,995.32 for the cost of the psychological assessment proposed in the OCF-18 dated August 13, 2018, with interest pursuant to s. 51 of the Schedule.

39The applicant is not entitled to the other OCF-18s in dispute or interest.

Released: November 14, 2022

__________________________

Christopher Evans

Adjudicator

Footnotes

1. 1O Reg 34/10 as amended.
2. 2It appears that issue seven stated in the Case Conference Report and Order (“CCRO”) of March 26, 2021 is a duplicate of this issue.
3. 3In the CCRO and the parties’ submissions, this issue is incorrectly stated as concerning benefits for psychological services.
4. 4Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.
5. 5Fabio Salerno, Independent Psychological Evaluation, dated November 8, 2018. Respondent’s Written Submissions, Tab 4 at PDF page 117.
6. 6Extended Health Care Claims, dated January 6, 2021. Respondent’s Written Submissions, Tab 6 at PDF pages 139-141. The record does not show what benefits the applicant obtained under the MIG or whether she exhausted the $3,500.00 in benefits available to her.
7. 716-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 38
8. 8Clinical Notes and Records (“CNRs”) of Mississauga Wellness Medical Centre, dated May 24, 2018. Applicant’s Written Submissions, Tabs 7, 9-11 at PDF pages 51-52.
9. 9Ibid at PDF page 51.
10. 10Supra note 5 at PDF pages 117-118.
11. 11Supra note 8 at PDF page 52.
12. 12Ibid at PDF page 51.
13. 13Ibid.
14. 14Ibid.
15. 15Ibid.
16. 16Supra note 5 at PDF page 113.
17. 17Ibid at PDF page 115.
18. 18Ibid at PDF page 113-114.
19. 19Ibid at PDF page 113.
20. 20Ibid at PDF page 115.
21. 21Ibid at PDF page 113.
22. 22Ibid at PDF pages 108-109. Curiously, it appears that the respondent did not instruct Mr. Salerno to consider whether the August 13, 2018 OCF-18 was reasonable and necessary. However, he noted in his report that he reviewed it: Ibid at PDF page 109.
23. 23Ibid at PDF page 118.
24. 24Ibid at PDF pages 117-118.
25. 25Ibid at PDF page 111.
26. 26Ibid.
27. 27Ibid at PDF page 111.
28. 28Supra note 8 at PDF page 51.
29. 29Supra note 5 at PDF pages 111-112.
30. 30Respondent’s Written Submissions, Tab 6.
31. 31Ibid at PDF pages 131-133.
32. 32Supra note 8 at PDF page 51.
33. 33Professional Services Guideline, Superintendent’s Guideline No. 03/14.
34. 34Superintendent’s Guideline No. 04/16.