Balram Itwaru v. RSA Insurance, 2022 CanLII 11131

Licence Appeal Tribunal

Citation: Itwaru v. RSA Insurance, 2022 ONLAT 20-002236/AABS

Licence Appeal Tribunal File Number: 20-002236/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:

Balram Itwaru

Applicant

and

RSA Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Ilia Estrah, Counsel

For the Respondent: Mannaneh Duval, Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on July 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a Case Conference on January 13, 2021 but were unable to resolve the issues in dispute.

3The parties consented to proceed by way of written hearing, with the applicant making submissions, the responding making submissions and the applicant submitting a reply.

4In his submissions, the applicant withdrew issue iii, or “Is the applicant entitled to receive medical benefits in the amount of $2,967.84 for psychological services recommended by Inline Rehabilitation in a treatment plan, submitted March 22, 2018, and denied by the respondent on March 28, 2018?” from the issues in dispute, which is reflected below.

ISSUES

5The parties consented to the following issues being in dispute:

i. Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to a $3,500 treatment limit under the Minor Injuries Guideline (‘MIG’)?

ii. Is the applicant entitled to receive medical benefits in the amount of $1,920.53 for psychological services recommended by Inline Rehabilitation in a treatment plan, submitted February 15, 2018, and denied by the respondent on March 1, 2018?

iii. Is the applicant entitled to receive medical benefits in the amount of $2,519 for psychological services recommended by Inline Rehabilitation in a treatment plan, submitted April 19, 2018, and denied by the respondent on April 30, 2018?

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

RESULTS

6The applicant’s psychological injury warrant removal from the MIG.

7Both treatment plans in dispute are found to be reasonable and necessary, with interest owing on the treatment plan totaling $1,920.53 and no interest owing on that of the treatment plan totaling $2,519.00.

LAW

8Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

9Section 3(7)(e) of the Schedule states that an expense in respect to a good or service is not incurred unless the insured person has received the good or service to which the expense relates, the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and the person who provided the good or service did so in the course of their employment in which he/she/they would normally have been engaged in but for the accident or sustained an economical loss as a result of providing such.

10Section 3(8) of the Schedule states that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining the insured person’s entitlement to the benefit, deem the expense to have been incurred.

11Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of his/her/their medical and rehabilitation benefits payable shall not exceed $3,500.00.

12Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

13The applicant has the burden of proving that he/she/they should be removed from the MIG, and to prove his/her/their entitlement to a medical or rehabilitation benefit. In both cases, the burden is on a balance of probabilities.

EVIDENCE & ANALYSIS

Does the applicant have a psychological impairment?

14The applicant claims that he sustained a psychological injury as a result of the accident that place his claims outside of the MIG.

15Psychological injuries, if established, may fall outside the MIG, because the MIG governs only “minor injuries” and the prescribed definition does not include psychological impairments.

16The applicant took the position that his psychological injury warranted his removal from the MIG.

17The applicant submitted that he developed Specific Phobia, Situational – driving and passenger, as diagnosed by Dr. Valery Kleiman, psychologist².

18Of note, during the assessment protocol conducted by Ms. Snezana Djuric, Master of Education, Psychometrist, as supervised by Dr. Kleinman, the applicant’s psychometric testing indicated moderate levels of anxiety and heightened driving and riding avoidance behavior.

19The applicant also relied on the Tribunal’s decision of 17-005791 v. Aviva³ , where the Tribunal found the applicant’s psychological symptoms, even without a diagnosis, warranted removal of the MIG.

20The respondent disagreed with the applicant’s position and submitted that the applicant’s injuries as a result of the accident do not warrant removal from the MIG on the basis of a psychological injury.

21The respondent relied on its insurer examination conducted by Dr. Rees Lewis, Psychologist⁴. Dr. Lewis opined that the applicant did not suffer from any psychological disorder as a result of the accident.

22The respondent submitted that the applicant commented to Dr. Lewis that the accident had little effect on his psychological state, stating that his “overall mood is still the same”⁵, and that the accident had no increased his irritability, or lowered mood. The applicant did note that he experienced changes to his appetite and had lost approximately 15 pounds since the accident to Dr. Lewis.

23The applicant also reported to Dr. Lewis that he became “shaky” when feeling other vehicles are too close when the applicant drives. He did comment that he is still able to drive. He also commented that driving in the city causes him more anxiety than highway driving. The applicant also stated that he felt less comfortable being a passenger in a car and often instructed the driver what to do, hit imaginary brakes and clung to the door handles.

24Dr. Lewis opined that psychological symptoms observed in the applicant by Dr. Kleiman, namely Specific Phobias, had considerably resolved since the previous assessment but provided no basis for such. Therefore, Dr. Lewis found the applicant to be in the MIG.

25In terms of Dr. Lewis’s psychometric testing, the applicant’s results were deemed to be valid. In comparison, Dr. Kleinman also had no validity measure concerns of the applicant’s results. Overall, according to Dr. Lewis, the applicant’s testing scores fell within what is considered the “normal range” and suggested moderate issues with impulsive behavior, social withdrawal, a sense of control, alienation and alcohol use.

26The applicant submitted more weight should be placed on Dr. Kleiman’s findings due to Dr. Kleiman using more thorough testing for situational-type anxiety, such as the Specific Phobia claimed by the applicant. He submitted that Dr. Lewis’ methodology was incomplete, resulting in the inconsistent reporting. The applicant noted that Dr. Lewis commented on the applicant’s symptoms resolving but did not provide an explanation or basis for such.

27The respondent noted that the applicant’s assertions to Dr. Lewis and Dr. Kleiman are contradictory. It submitted that more weight should be placed on Dr. Lewis’s report.

28It also submitted that the applicant never visited his Family Doctor, Dr. Usama Sarsam, due to his psychological injury. Instead, the respondent noted that the applicant only reported that he had complaints of neck and back pain as a result of the accident⁶. The applicant did not return to Dr. Sarsam until nearly three years later⁷. The respondent submitted that since the applicant did not report or provide evidence of reporting a psychological issue in these three years, the applicant has not met his burden of proof to demonstrate that this injury was treated or commented on during this period.

29The applicant disagreed with this characterization of his clinical notes and records. He submitted that after being referred to physiotherapy treatment, the applicant was cared for by Dr. Peter Miele, Chiropractor, for nearly one-year post accident⁸. The clinical notes and record from Dr. Miele detailed the applicant’s complaints of pain, stress and insomnia. Dr. Miele also observed symptoms of post-traumatic stress disorder, nervousness and sleep issues⁹. Though the applicant acknowledged that a Chiropractor cannot diagnose a psychological injury, he submitted that Dr. Miele’s observations regarding his symptomology supports his position, as noted in 17-005791 v. Aviva¹⁰.

30After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant does suffer from a psychological injury as a result of the accident which would remove him from the MIG.

31In terms of the applicant’s medical history, though I note that Dr. Miele is not a psychologist or psychiatrist and therefore cannot diagnose psychological conditions, as a Chiropractor, he is able to observe psychological symptoms, as submitted by the applicant.

32Though I do acknowledge that the applicant did not report psychological symptoms to his family physician, when reading Dr. Kleiman’s report in conjunction with Dr. Miele’s observations of the applicant, I was satisfied that the applicant did experience psychological symptoms as a result of the accident.

33I preferred the evidence of Dr. Kleiman over the evidence of Dr. Lewis, as I was more persuaded by the applicant’s assertion that Dr. Lewis’ methodology was incomplete when compared to that of Dr. Kleiman.

34Furthermore, Dr. Kleiman’s findings were based on psychometrics, while much of the evidence relied upon by the respondent was based on the applicant’s self-reporting. Though self-reporting is an important part of psychological evaluation, it should not be the sole basis of determining that an applicant suffers a psychological injury or not. Instead, it should be used in combination with thorough psychometric testing.

35Dr. Lewis also failed to comment on the applicant’s high score of 35 on the Actions and Feelings Questionnaire (‘AFQ’) despite this score often falling within the diagnosis of accident phobia¹¹, as noted by Dr. Lewis, who wrote “Normative samples of patients with a diagnosis of accident phobia and PTSD had means of 24 and 54 respectively”. Dr. Lewis’ report as a whole provided an incomplete picture of the applicant’s psychological state as a result of the accident and provided little explanation for his findings.

36Since the disputed treatment plans involve only psychological treatment, I need not determine if the applicant’s chronic pain also removes him from the MIG.

Is the applicant entitled to $1,920.53 & $2,519 for psychological services with Inline Rehabilitation?

37Since the two treatment plans in dispute (the ‘OCF-18’s) are for the same type of medical service, with the same service provider, I will address both benefits at once.

38The applicant requested that the Tribunal determine that the OCF-18 for a psychological assessment totaling $1,920.53 and the OCF-19 for psychological services totalling $2,519.00 area reasonable and necessary. The respondent opposed this.

39After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that that the treatment plans are reasonable and necessary for the following reasons.

40The applicant did not address the OCF-18 plans individually but submitted that as whole, they are reasonable and necessary as a result of the accident. He also argued that since he ought to be removed from the MIG on the basis the findings from one of the treatment plans, he requires both and they are reasonable and necessary.

41This is because the applicant sustained psychological injuries as a result of the accident, has not reached maximal recovery from those injuries, struggles with his limitations and requires the services proposed in the disputed treatment plans, namely identifying and addressing the applicant’s Specific Phobia as discussed above. The applicant did not discuss the modality of the treatment, the frequency of the treatment, the costs of the treatments or other factors.

42Since these OCF-18s are related to the grounds of removing the applicant from the MIG, namely the psychological assessment to determine that the applicant suffered from injuries excluded by the MIG, and treatment of such, the applicant argued that they are self-evident in relation to their reasonableness and necessity.

43Furthermore, the applicant submitted that Dr. Kleiman recommended that the applicant attend 8 sessions of psychotherapy over 2-3 months to assist him with travelling.

44The respondent submitted that the psychological services were not reasonable and necessary. It submitted that pursuant to Dr. Lewis’s report, the applicant did not have a psychological injury, and any injuries were minor in nature¹², meaning the treatment plans in dispute are not reasonable and necessary.

45The respondent also submitted that even if the applicant’s injuries are found to be outside the MIG, the applicant bears the burden of demonstrating that the services are “reasonable and necessary”. In this case, the respondent submitted he had not.

46In the alternative, the respondent submitted that the treatment plan in the amount of $1,920.53 was not incurred by the applicant, and therefore, is not payable. It submitted that the applicant has failed to provide evidence of such. Since the applicant had only made submissions regarding this and not evidence, the respondent argued that said submissions should not be given any evidentiary weight¹³ and that the applicant has not discharged his onus.

47The applicant disputed that the treatment plan in the amount of $1,920.53 for a psychological assessment had not been incurred, despite being denied by the respondent. He submitted that the OCF-18 for the psychological assessment with Ms. Djuric and Dr. Kleiman occurred, as discussed above. Furthermore, the applicant referred to the accounting summary from Inline Rehabilitation Centre, the amounts proposed, the dates incurred and amounts outstanding¹⁴ as meeting the obligation as set by section 3(7)(e) of the Schedule.

48As for the second treatment plan in the amount of $2,519.00, the applicant submitted that the question of incurred is a “non-issue” as neither section 55 of the Schedule nor section 280 of the Insurance Act prevent an applicant from appealing a denial of a benefit that has not been incurred.

49In this case, I was more persuaded by the applicant’s position, that the OCF-18s were reasonable and necessary. I based myself on the findings of Dr. Kleiman¹⁵, who found that the applicant sustained a psychological injury as a result of the accident and required further treatment.

50Furthermore, I accept Dr. Kleiman’s evidence and that the OCF-18s proposed were rationally connect to the injuries sustained by the applicant and to assist him reach maximum medical recovery.

51Though I appreciate the respondent’s position that the applicant has not met his burden to show that the OCF-18s are not reasonable and necessary, the respondent made no submissions challenging any specific part of the OCF-18s, and therefore, I preferred the applicant’s position.

52This was in part, based on Dr. Kleiman’s report, which was produced as a result of one of the OCF-18’s in dispute, I found that the applicant’s psychological injuries exclude him from the MIG. I was persuaded that his diagnosis of Specific Phobia, Situational – driving and passenger warranted such.

53I also was more persuaded by the applicant’s arguments related to the OCF-18 for psychological treatment, as Dr. Kleiman provided a rational correlation between the applicant’s need for treatment and his injuries as a result of the accident, while the respondent turned to it’s report from Dr. Lewis, which I’ve already commented on.

54Finally, in terms of which OCF-18 have been incurred, I find that the applicant has incurred the OCF-18 in the amount of $1,920.53 by attending the assessment with Dr. Kleiman. I relied on section 3(7)(e) of the Schedule, as noted by the respondent. In this case, I was provided with ample evidence from the applicant that not only did he attend the assessment but has made a promise to pay for such services.

55In terms of the OCF-18 in the amount of $2,519, I find that the applicant is entitled to this expense, as the treatment is reasonable and necessary. If he has not incurred this OCF-18, he may do so now, in accordance the Schedule.

Interest

56In accordance with section 51 of the Schedule, interest is only payable on overdue payments.

57In this instance, since the applicant has not provided any evidence that the treatment plan total $2,519 .00 has been incurred but has shown that the psychological assessment has been incurred, only the psychological assessment is subject to receiving interest.

58Since interest cannot accrue on goods and services which have not been incurred—and where I find there is no evidence or submissions to deem them incurred under section 3(8) of the Schedule, no interest is payable.

ORDER

59For the reasons outlined above, I find that:

i. The applicant’s psychological injuries to be outside of the MIG;

ii. The applicant is entitled to the following:

1. $1,920.53 for psychological services recommended by Inline Rehabilitation.

2. $2,519 for psychological services recommended by Inline Rehabilitation.

3. Interest owing on the treatment plan in the amount of $1,920.53.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Psychological Assessment Report dated March 21, 2018.
3. 317-005791 v Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT)
4. 4Dated July 30, 2018.
5. 5Psychological Assessment Report of Dr. Lewis dated July 30, 2018.
6. 6Dr. Sarsam’s clinical notes and records of August 8, 2017.
7. 7Dr. Sarsam’s clinical notes and records of April 7, 2020.
8. 8Clinical notes and records of Inline Rehabilitation from July 2017 to April 2018.
9. 9OCF-3 of Dr. Miele dated August 10, 2017.
10. 1017-005791 v Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT)
11. 11As noted in the Psychological Assessment Report of Dr. Lewis dated July 30, 2018.
12. 12Psychological Assessment Report of Dr. Lewis dated July 30, 2018.
13. 13As seen in 16-001142 v RBC General Insurance Company, 2017 CanLII 35321 (ON LAT) at paragraphs 4-6.
14. 14As seen on Inline Rehabilitation Centre Account Summary,
15. 15Of the Psychological Assessment Report dated March 21, 2018.