Citation: Ferguson v. The Co-operators, 2022 ONLAT 20-005234/AABS

Licence Appeal Tribunal File Number: 20-005234/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:

Rockell Ferguson

Applicant

and

The Co-operators

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Amanda M. Lennox, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on May 24, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by The Co-operators, (“the respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are in dispute:

1. 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 and in the MIG?

2. Is the applicant entitled to an income replacement benefit in the weekly amount of $400.00 for the period from May 30, 2019 to date and ongoing?

3. Is the applicant entitled to a medical benefit in the amount of $1,984.48 ($3,084.48 - $1,100.00 approved) for chiropractic services recommended by Dustin Yen in a treatment plan (“OCF-18”) dated June 15, 2019?

4. Is the applicant entitled to a medical benefit in the amount of $2,500.64 for chiropractic services recommended by Dustin Yen in an OCF-18 dated September 14, 2019?

5. Is the applicant entitled to medical benefits relating to the following chiropractic services recommended by Dan Shlepakov as follows:

a) $2,374.40 in an OCF-18 dated August 6, 2019?

b) $1,700.00 in an OCF-18 dated August 23, 2019?

c) $1,700.00 in an OCF-18 dated October 8, 2019?

d) $2,193.76 in an OCF-18 dated October 22, 2019?

e) $1,700.00 in an OCF-18 dated November 27, 2019?

f) $2,293.92 in an OCF-18 dated January 12, 2020?

g) $1,700.00 in an OCF-18 dated January 7, 2020?

6. Is the applicant entitled to a medical benefit in the amount of $2,193.60 for chiropractic services recommended by Rudi Chan in an OCF-18 dated November 30, 2019?

7. Is the applicant entitled to a medical benefit for $3,963.64 for psychological services recommended by Harinder Mrahar in an OCF-18 dated August 30, 2019?

8. Is the applicant entitled to medical benefits for $3,558.64 for psychological services recommended by Harinder Mrahar in an OCF-18 dated October 15, 2019?

9. Is the applicant entitled to a medical benefit for $3,153.64 for psychological services recommended by Harinder Mrahar in an OCF-18 dated December 19, 2019?

10. Is the applicant entitled to the cost of an examination for $288.75 ($1,995.00 - $1,706.25 approved) for a psychological assessment recommended by Harinder Mrahar in an OCF-18 dated July 24, 2019?

11. Is the applicant entitled to the cost of an examination in the amount of $1,415.00 for a social worker assessment recommended by Isabelle Zonenberg in an OCF-18 dated September 14, 2019?

12. Is the applicant entitled to the cost of an examination in the amount of $1,695.00 for a functional cognitive assessment recommended by Eveni Amchislavsky in an OCF-19 dated September 14, 2019?

13. Is the applicant entitled to the cost of examinations recommended by Q Medical as follows:

a) $2,029.79 for an attendant care needs assessment submitted September 26, 2019?

b) $4,114.93 for an occupational therapy assessment submitted November 13, 2019?

c) $2,500.13 for a neurological assessment submitted December 16, 2019?

d) $1,945.22 for an assessment of attendant care submitted November 12, 2019?

14. Is the applicant entitled to $3,704.45 for assistive devices recommended by Q Medical?

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

RESULT

3I find:

1. The applicant suffered psychological impairments that are not included in the minor injury definition. Thus, she is not bound by the $3,500.00 funding limit on medical and rehabilitation benefits;

2. The applicant is entitled to the cost of an examination for $288.75 for a psychological assessment recommended by Harinder Mrahar in the OCF-18 dated July 24, 2019;

3. The remaining treatment and assessment plans in dispute are not reasonable and necessary pursuant to the Schedule;

4. The applicant is not entitled to $3,704.45 for assistive devices;

5. Interest is payable pursuant to s. 51 of the Schedule for the cost of the psychological assessment set out above.

4The following issues were withdrawn by the applicant; the claim for an income replacement benefit (issue 2), the cost of a social worker assessment in the amount of $1,415.00 (issue 11), the cost of a functional cognitive assessment in the amount of $1,695.00 (issue 12), and the cost of an attendant care needs assessment in the amount of $1,945.22 (issue 13(d)).

BACKGROUND

5The applicant was the seat-belted driver of a motor vehicle impacted on the driver’s side by another vehicle turning left at a stop light. The air bags of the vehicle deployed, and the applicant suffered a laceration to her lip. She was ambulatory following the accident but was noted to be emotionally upset when she taken to hospital via ambulance. Upon examination, it was noted her left hand was swollen, but x-rays taken on the date of loss indicated no fracture or abnormality in her left hand.¹

6The applicant returned to the emergency room on May 31, 2019 complaining of headache, dizziness, and ringing in her ears. The emergency room diagnosis indicated “headache”.² A computed tomography (“CT”) scan of her head was completed on that date, and indicated the results were “unremarkable”.³ Although the applicant later claimed to have suffered a concussion as a result of the accident, such a diagnosis is not present in any of the medical evidence tendered.

7The applicant has a significant pre-accident medical history including diagnoses for depression, anxiety, chronic back pain, osteoarthritis of the neck and lumbar spine, mild scoliosis, spinal canal stenosis, and fibromyalgia. She has been on medical leave from her employment since May 26, 2018 and has not returned following the accident.

The Minor Injury Guideline

8The Minor Injury Guideline (“MIG”) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) 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 defined in the Schedule.

9Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition.

10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 funding limit on a balance of probabilities.⁴

11The applicant has already exhausted the $3,500.00 funding limit pursuant to the MIG.

Psychological Impairment and the MIG

12Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” I am persuaded the applicant has adduced sufficient evidence to establish she suffered an accident-related psychological impairment.

13The applicant relies on at least 17 OCF-18s to establish that her impairments are not minor and therefore beyond the treatment limits of the MIG. However, there must be contemporaneous evidence to establish his impairments cannot be treated within the MIG limits. These documents are insufficient on their own, absent compelling evidence, to establish the applicant’s impairments fall beyond the definition of a “minor injury” in section 3(1) of the Schedule.

14The majority of the handwritten clinical notes and records provided the applicant’s family physician, Dr. Vimal Amarasekera are illegible. However, in correspondence to her employer related to the applicant’s pre-accident applications for disability benefits dated July 10, 2018 and April 9, 2019, it is highlighted that the applicant suffers from “chronic anxiety” and “chronic anxiety depression”.⁵ Given the extensive periodical visits to her family physician, noted in the records dating back to February 2011, I place significant weight upon the observations and diagnoses provided by Dr. Amarasekera.

15The applicant also sought post-accident counselling from Dr. Stav Balanovsky, Master of Social Work, between August 30, 2019 and February 11, 2020. In the thirty-eight session records provided, the applicant demonstrated a pattern of reporting related to her post-accident anxiety, fear, frustration, and triggering thoughts as a result of the subject accident.⁶

16The applicant relies on the Psychological Assessment Report by Dr. Harinder Mrahar, Clinical Psychologist, dated May 24, 2019. It was noted the applicant had suffered depressive and anxious symptoms since 2015 and was prescribed psychotropic medication at that time. The applicant reported an increase in depressive and anxious symptomology since the accident. Dr. Mrahar conducted five different objective psychometric tests resulting in a DSM-V diagnosis of post-traumatic stress disorder (“PTSD”), and major depressive disorder (recurrent severe without psychotic symptoms).⁷

17The respondent relies on the Psychiatry Insurer’s Examination (“IE”) Report provided by Dr. Robert Hines, Psychiatrist, dated January 2, 2020. He stated the applicant “functioned well during the assessment” and demonstrated “no objective evidence of her subjectively reported symptoms” other when she was “mildly, briefly tearful”.⁸ I place little weight on these observations, as Dr. Hines did not complete any objective psychometric testing as part of his assessment. In my opinion, this critically weakened the reliability of his report. However, he did comment that the accident likely exacerbated her pre-existing depression and anxiety.⁹

18Given the evidence provided regarding the applicant’s pre-existing anxiety and depression, I am persuaded these psychological symptoms were aggravated as a result of the accident. The applicant’s psychological impairments were not only reported to her family physician, Dr. Amarasekera pre-accident, but repeatedly to her counsellor Mr. Balanovsky in post-accident sessions. The psychological assessment reports tendered also both identified an exacerbation of pre-accident depression and anxiety, with Dr. Mrahar specifically diagnosing PTSD and major depressive disorder following the accident.

19As a result, I am persuaded the applicant did suffer an accident-related psychological impairment that was not a minor injury as per s. 3(1) of the Schedule and is removed from the treatment limits of the MIG.

OCF-18s and Assistive Devices

20Even though I have found the applicant’s psychological impairments are not minor injuries, and therefore not subject to the treatment limits of the MIG, the applicant must still establish the treatment and assessments sought are reasonable and necessary pursuant to sections 14 and 15 of the Schedule.

21I am persuaded that only the remaining cost of an examination for $288.75 for a psychological assessment in the OCF-18 dated July 24, 2019 is reasonable and necessary pursuant to the Schedule.

22In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.

23Given the evidence cited above related to the exacerbation of the applicant’s pre-existing depression and anxiety, coupled with Dr. Mrahar’s diagnoses of PTSD and major depressive disorder, I am satisfied the applicant has provided objective grounds for this psychological assessment. Therefore, I find this assessment is reasonable and necessary pursuant to the Schedule.

24However, the applicant has provided no submissions regarding how the various OCF-18s involving treatment and assessments are reasonable and necessary. Despite not having submissions, and after my review of the documents, I am not persuaded the applicant has met her onus pursuant to the Schedule.

25Similarly, the applicant has not provided any OCF-18 to support her claim for the assessments by Q Medical listed as issues 13 (a)-(c). A similar issue was addressed in the reconsideration decision of J.R. v. Certas Home and Insurance Company.¹⁰ Where the Executive Chair highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence in a hearing. The Executive Chair stated:

Just as an insurer reviews a complete OCF-18 in order to properly decide whether to fund the insured’s request, the Tribunal generally requires the same document in order to properly understand both the insured’s request and the insurer’s response. Put simply, the Tribunal cannot fairly adjudicate an application in most cases without a complete copy of the very document giving rise to the parties’ dispute [my emphasis added].¹¹

26This is a case where I do not need the OCF-18s to be before me for a full and satisfactory understanding of the issues in dispute. This is especially in light of the applicant’s failure to provide any submissions regarding why these assessments were reasonable and necessary.

27Finally, the applicant has not provided any breakdown for the expenses claimed for assistive devices. Without submissions and from the documents provided, I simply cannot determine how these expenses are apportioned, nor what type of assistive devices are claimed.

28Thus, aside from the cost of a psychological examination by Dr. Mrahar, none of the additional treatment, assessments, nor assistive devices claimed are reasonable and necessary pursuant to the Schedule.

Interest

29Interest is payable on the overdue payment of benefits. The applicant is only entitled to applicable interest pursuant to the cost of the psychological assessment, in the amount of $288.75 pursuant to s. 51 of the Schedule.

ORDER

30I find:

1. The applicant suffered psychological impairments that are not included in the minor injury definition. Thus, she is not bound by the $3,500.00 funding limit on medical and rehabilitation benefits;

2. The applicant is entitled to the cost of an examination in the amount of $288.75 for a psychological assessment recommended by Harinder Mrahar in the OCF-18 dated July 24, 2019;

3. The remaining OCF-18s in dispute are not reasonable and necessary pursuant to the Schedule;

4. The applicant is not entitled to $3,704.45 for assistive devices;

5. Interest is payable pursuant to s. 51 of the Schedule for the cost of the psychological assessment set out above.

Released: November 4, 2022

__________________________

Ian Maedel

Vice-Chair

Footnotes

1. 1Document Brief, The Scarborough Hospital Diagnostic Imaging – Radiology, Left Hand, May 24, 2019, Tab 7.
2. 2Document Brief, The Scarborough Hospital, Emergency Room Record, May 31, 2019, Tab 7.
3. 3Document Brief, The Scarborough Hospital, Diagnostic Imaging – Computed Tomography-Head, May 31, 2019, Tab 7.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Document Brief, Clinical Notes and Records of Dr. Vimal Amarasekera, July 10, 2018, and April 9, 2019, Tab 7.
6. 6Document Brief, Scarborough Medical Centre, Clinical Notes and Records of Stav Balanovsky, Tab 20.
7. 7Document Brief, Psychological Assessment Report by Dr. Harinder Mrahar, August 23, 2019, Tab 24. pg. 12.
8. 8Document Brief, Psychiatry Assessment, Dr. Robert Hines, January 2, 2022, Tab 26, pg. 17.
9. 9Ibid.
10. 102018 CanLII 13161 (ON LAT Reconsideration Decision) (“J.R. v. Certas”).
11. 11Ibid. at para. 21.