Kaur v. Intact Insurance Company, 2022 CanLII 16929

Citation: Kaur v. Intact Insurance Company, 2022 ONLAT 20-002527/AABS

Licence Appeal Tribunal File Number: 20-002527/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:

Simrandeep Kaur

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Murad Huseynov, Paralegal

For the Respondent: Suzan Park, Counsel

HEARD: By way of written submissions

OVERVIEW

1Simrandeep Kaur, (“the Applicant”), was involved in an automobile accident on June 4, 2018, and sought benefits from Intact Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues in dispute were identified and agreed to as follows:

I. Are the Applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

II. Is the Applicant entitled to an examination expense in the amount of $2,204.92 for a psychological assessment recommended in a treatment plan dated September 26, 2018?

III. Is the Applicant entitled to a medical benefit in the amount of $3,592.14 for psychological services recommended in a treatment plan dated December 2018?

IV. Is the Applicant entitled to a medical benefit in the amount of $4,113.50 for physiotherapy services recommended in a treatment plan dated February 7, 2020?

V. Is the Applicant entitled to a medical benefit in the amount of $475.00 for assistive devices recommended in a treatment plan dated April 12, 2019?

VI. Is the Applicant entitled to an examination expense in the amount of $1,600.00 for an attendant care assessment recommended in a treatment plan dated September 27, 2018?

VII. Is the Applicant entitled to an examination expense in the amount of $2,200.00 for a chronic pain assessment recommended in a treatment plan dated August 27, 2019?

VIII. Is the Applicant entitled to interest on overdue payment of benefits?

IX. Is the Respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

RESULT

3The Applicant sustained injuries which fall outside of the MIG. As a result, she is not bound by the MIG or the $3,500.00 funding limit on treatment. She is entitled to the treatment and assessment plans claimed, plus any applicable interest pursuant to section 51 of the Schedule.

4The Applicant is not entitled to an award.

BACKGROUND

5The Applicant was the driver of a sedan which struck a left-turning vehicle in a perpendicular fashion at a suburban intersection. Paramedics attended at the scene of the accident but did not take the Applicant to the hospital. Instead, she was picked-up from the scene by her spouse and taken home. Later that day, she went to her family physician, Dr. Hussein, and presented with symptoms of psychologic shock, sprain/strain disorders in the neck, back and shoulders, bruising on the forehead, headaches, and possible concussion syndrome. Dr. Hussein advised the Applicant to refrain from work for the next week and referred her to physiotherapy.

6The Applicant started physiotherapy and massage therapy treatment as recommended, subject to the Minor Injury Guideline (“the MIG”). She exhausted the funding available to her under the MIG and seeks a finding that her injuries fall outside the MIG and that she is not subject to the $3,500.00 MIG funding limit. Further, the Applicant seeks a finding that the proposed treatment and assessment plans are reasonable and necessary, that interest is payable on overdue payments, and that she is entitled to an award because her benefits were unreasonably withheld.

7The Respondent maintains that the Applicant sustained a minor injury and is subject to the MIG. It submits that the Applicant is not entitled to the disputed treatment and assessment plans, interest or an award.

THE MINOR INJURY GUIDELINE

8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG. The Tribunal has also determined that chronic pain with functional impairment, psychological injuries, and concussions may warrant removal from the MIG.

9If an insurer deems an Applicant’s injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

10Upon review of the evidence and submissions, I find that the Applicant sustained psychological injuries as defined by the Schedule. As a result, she is not subject to the $3,500.00 funding limit provided by section 18 of the Schedule.

Psychological Injuries

11I agree with the opinion of Dr. B. Kershner, psychologist, in the report dated December 20, 2018, and find that the Applicant sustained an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Somatic Symptom Disorder with Predominant Pain, and in-vehicle phobia, all as a result of the subject accident. Dr. Kershner conducted a document review, clinical interview, and psychometric testing and found that the Applicant had severe symptoms of depression and anxiety. The diagnoses are consistent with the clinical notes and records (“CNRs”) of Dr. Hussein, her family physician. Dr. Hussein consistently documented the Applicant’s psychological complaints and symptoms following the accident, often noting her depressed state. On June 20, 2018, Dr. Hussein recommended that the Applicant see a psychologist and recommended prescription medication to address psychological symptoms on October 10, 2018.

12While the Applicant sustained psychological injuries as a result of the accident, she has mostly recovered from these injuries. It appears that the Applicant’s psychological symptoms decreased following a visit to Dr. Hussein on December 18, 2018. This is around the time the Applicant started psychological treatment. The Applicant consulted with Dr. S. Paleksic, physical medicine specialist, on April 10, 2019. Dr. Paleksic found that the Applicant was not depressed and had no anxiety or post-traumatic stress reactions but noted her ongoing pain and slowed improvement since stopping physiotherapy. Dr. Paleksic recommended that she continue with physiotherapy and massage and referred her for occupational therapy to facilitate an ergonomic assessment to prevent further neck pain and headaches. Dr. Paleksic made no recommendation for any psychological treatment or investigation. Dr. Paleksic’s recommendations, or lack thereof, occurred at the same time there is a marked decrease in psychological symptoms noted in Dr. Hussein’s CNRs. To me, this indicates that the Applicant had mostly recovered from her psychological injuries by that time.

13The insurer’s examination (“IE”) reports do not detract from Dr. Kershner’s findings and the consistent information in Dr. Hussein’s clinical notes and records. The IE report of Dr. M. Mandel, psychologist, dated October 25, 2018, and the paper reviews dated November 1, 2018, and February 11, 2019, all find insufficient objective evidence to form a formal diagnosis. The conclusion is based on elevated psychometric test scores, which to Dr. Mandel, are indicative of symptom magnification. Yet, the reports fail to address that Dr. Hussein recommended that the Applicant see a psychologist and the Applicant made consistent and recurrent psychological complaints to Dr. Hussein, as recorded in the CNRs.

14The neuropsychological assessment report of Dr. A. Syed, neuropsychologist, dated August 3, 2020, is less compelling than the other evidence. The assessment and report were completed following the Applicant’s participation in psychotherapy and she had mostly recovered from her psychological injuries by this time, as addressed above. Nevertheless, the Syed report notes that the Applicant appears to have improved with treatment and time and that she does not appear to be significantly impaired psychologically. To me, finding that the Applicant improve with treatment is indicative that she sustained psychological impairments as a result of the accident and I infer that she has since recovered to the point that the psychological impairments no longer meet the DSM-5 criteria for a formal diagnosis. In any event, Dr. Syed clearly finds that the Applicant sustained some level of psychological impairment as a result of the accident. Dr. Syed’s findings, together with Dr. Kirshner’s opinion discussed earlier, are sufficient to determine that the Applicant sustained a non-minor injury and is not subject to the $3,500.00 funding limit on treatment.

Chronic Pain

15The Applicant claims to suffer from chronic pain as a result of the accident. Having found that she sustained psychological injuries as a result of the accident, a finding on whether she suffers from chronic pain is unnecessary to remover her from the MIG and the $3,500.00 funding limit. I will come back to the topic of chronic pain when addressing the remaining issues in dispute.

Psychological Assessment Plan dated September 26, 2018

16The psychological assessment is reasonable and necessary to explore the extent of the Applicant’s psychological injuries and to determine what treatment is required. The psychological assessment seeks to identify the Applicant’s impairments, plan treatment, and plan to return her pre-accident functioning. As noted previously, the Applicant consistently exhibited psychological symptoms immediately following the accident and thereafter. In addition, her family doctor prescribed medication for her psychological symptoms in the fall of 2018. The psychological symptoms described in the various clinical notes and records justify the need for a psychological assessment.

Psychological Treatment Plan dated January 28, 2019

17I find the psychological treatment plan is reasonable and necessary to address the Applicant’s depression, anxiety, and vehicle phobia. As noted previously, the Applicant exhibited several symptoms of psychological injury and met the DSM-5 criteria. Psychological treatment was recommended by her family physician and her psychological treatment facility and I agree with the recommendations, considering the complaints in Dr. Hussein’s CNRs. As noted previously, the IEs fail to detract from the diagnosis provided by Dr. Kershner and the symptoms recorded and monitored by Dr. Hussein.

18The Applicant incurred some of the psychological treatment proposed and is entitled to payment for it once it is properly invoiced, plus any interest pursuant to section 51 of the Schedule. Further, while the Applicant has mostly recovered from her accident-related psychological injuries, it is reasonable to assume that she would benefit from engaging in the remaining balance of the treatment plan to address any residual psychological injury. The unconsumed balance of the treatment plan is therefore also reasonable and necessary. The Applicant is entitled to the treatment and the Respondent is liable to pay for it once incurred and properly invoiced.

Physiotherapy Treatment Plan dated February 14, 2020

19I find that the physiotherapy treatment plan is reasonable and necessary. The Applicant consistently reports lingering back pain, stemming from the accident. The Applicant’s family physician, Dr. Hussein, documented her ongoing pain complaints and at this time recommended that the Applicant continue with her massage therapy and physiotherapy treatment. The Applicant was also prescribed prescription pain medication then, and Dr. Hussein referred her to pain and cannabis clinics as well as an MRI. The chronic pain assessment report by Dr. I. Robertus, dated March 7, 2020, supports ongoing physiotherapy and massage therapy treatment, amongst other recommendations. However, I recognize that Dr. Robertus’ report is imperfect considering the extent that the report understates the Applicant’s functionality.

20The IE reports fail to diminish Dr. Hussein’s opinion and recommendations. Dr. A. Belfon, physician, assessed the Applicant and issued a report and addendum dated November 29, 2018 and December 12, 2018, respectively. Those reports concluded that the Applicant requires no further physiotherapy and massage therapy because she has received several months of treatment and her injuries ought to have resolved in that time. The conclusion fails to address the Applicant’s ongoing pain and the temporary relief she gets from treatment. More importantly, Dr. Belfon defers any further treatment or medication management to the Applicant’s family physician, Dr. Hussein, who consistently recommends ongoing physiotherapy and massage therapy.

21The IE report of Dr. I Chaudhry, physician, dated August 27, 2020, notes the Applicant’s pain complaints, particularly during range of motion testing. Yet, the report concludes that no further facility-based treatment is required because the Applicant sustained soft-tissue injuries and that any treatment above the $3,500.00 funding cap is not reasonable and necessary. To me, Dr. Chaudhry’s recommendation, or lack thereof, is more of a legal conclusion and less of a medical one. As a result, I prefer the opinion of Dr. Hussein over Dr. Chaudhry.

TENS Unit Plan dated April 12, 2019

22I find the TENS unit is reasonable and necessary for the Applicant’s ongoing accident-related neck pain. Like the physiotherapy treatment plan discussed above, this treatment plan is reasonable and necessary because it is recommended by the Applicant’s family physician, who is in the best position to manage the Applicant’s treatment and recovery. This is supported by Dr. Belfon’s reports, which defers to the Applicant’s primary care physician.

Attendant Care Assessment Plan dated September 27, 2018

23I find the attendant care assessment to be reasonable and necessary to examine the extent of the Applicant’s impairments and, if necessary, make recommendations for assistive devices and/or personal care support. The Applicant sustained non-minor injuries which appear to have impacted her functionality and it is reasonable to explore that. I acknowledge that Dr. Belfon determined that, in the November 29, 2018 IE report, the Applicant was independent with the majority of her personal care tasks, and found the assessment was not reasonable and necessary for this reason. However, this reason fails to appreciate that the Applicant nevertheless had some remaining limitations that warranted exploration.

24The Applicant’s limitations are noted in Dr. Hussain’s CNRs. Some examples include: an entry dated September 7, 2018 noted that she is unable to carry a purse and has neck pain and “difficulty holding steady” especially at the computer, an entry dated September 13, 2018 noted difficulty lifting her right arm, an entry on October 30, 2018 notes an inability to do household chores due to neck and shoulder pain, and a December 18, 2018 entry that notes that she remains off work and has a functional impairment in neck movement and standing. This is sufficient evidence to examine whether the Applicant requires attendant care or assistive devices.

Chronic Pain Assessment Plan dated August 27, 2019

25I find that this assessment is reasonable and necessary to explore the Applicant’s ongoing pain and associated concerns. It is important to highlight that the test for whether a chronic pain assessment is reasonable and necessary is not whether the Applicant actually developed chronic pain syndrome. The test is whether it is reasonable and necessary to assess the Applicant for the purpose of reviewing and approving a treatment and assessment plan. Here, the Applicant consistently complained of ongoing pain which, at times, precluded her ability to work and caused her to take time off. The Applicant’s pain persisted to the point that her OHIP-funded family physician, Dr. Hussein, referred her to a pain clinic in March 2020. As I noted above, the IE report by Dr. Belfon defers treatment and medical management to Dr. Hussein and the IE report of Dr. Chaudhry is uncompelling because it concludes that further treatment and assessments are not reasonable and necessary because the Applicant exhausted the MIG funding limit. Taken together, the evidence supports the Applicant’s claim that the chronic pain assessment is reasonable and necessary.

INTEREST

26Pursuant to section 51 of the Schedule, the Applicant is entitled to interest on any overdue payment of benefits.

AWARD

27The Applicant claims entitlement to an award pursuant to section 10 of Reg. 664. She claims that the Respondent failed to assess her claim on an ongoing and good faith basis. She submits that the Respondent never considered or ignored new evidence such as the clinical notes and records from her treating healthcare practitioners, and that it took no action to address her chronic pain.

28The Respondent submits that the Applicant is not entitled to an award because it reasonably relied on the reports and documents which were provided. It notes that it never received updated CNRs from Dr. Hussein until this hearing and that the Applicant has provided no particulars to support her claim for an award.

29Pursuant to section 10 of Reg. 664, the Applicant may be entitled to an award if the Respondent unreasonably withheld or delayed payment of a benefit. An award should only be ordered when an insurer’s conduct is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

30In this case, the Applicant initially presented with predominantly minor injuries and was subject to the MIG. The Applicant participated in treatment pursuant to the MIG and then sought funding for benefits outside the MIG. The Respondent then exercised its right to examine the Applicant, pursuant to section 44 of the Schedule. It accepted the recommendations of the section 44 assessors and acted in accordance with their advice. Considering this, and that no remarkable or obvious errors or omissions are within the IE reports, I find that the Respondent’s actions were reasonable. Reasonable actions are not subject to an award.

CONCLUSION AND ORDER

31The Applicant sustained non-minor injuries. She is no longer subject to the $3,500.00 funding limit on medical benefits.

32The treatment and assessment plans in dispute are reasonable and necessary for the Applicant’s accident-related injuries. The Applicant is entitled to payment for the goods and services she has incurred and have been properly invoiced, plus any applicable interest. Further, the Applicant is entitled to incur the goods and services if she has yet to do so and the Respondent is liable to pay for it once properly invoiced.

33No award is payable as no payments or benefits were unreasonably withheld.