Shekoohfar v. Wawanesa Insurance, 2022 CanLII 23406

Citation: Shekoohfar v Wawanesa Insurance, 2022 ONLAT 20-009413/AABS

Licence Appeal Tribunal File Number: 20-009413/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:

Sholeh Shekoohfar

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Sholeh Shekoohfar, Applicant Tanya Fleming, Counsel

For the Respondent: Debbie Sawyer, Representative Shannon Mulholland, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant claims that as a result of the accident on May 5, 2017 she sustained a number of physical and psychological injuries and sought accident benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule). The applicant applied for the cost of an examination for a psychological, neurological and chronic pain assessment and a medical benefit for psychological services, all of which were denied by the respondent on the basis that the applicant’s injuries are within the Minor Injury Guideline. The respondent raises alternatively the issue of causation and submits the injuries were not caused by the accident.

2The applicant maintains her injuries are not within the Minor Injury Guideline. She maintains further that she is entitled to the medical benefit and cost of examinations in dispute as they are reasonable and necessary.

ISSUES IN DISPUTE

3The issues are as follows:

a. Did the applicant sustain a predominantly minor injury as defined under the Minor Injury Guideline and, thus, is she limited to a $3,500 limit on treatment?

b. If the applicant’s injuries are found to be outside of the Minor Injury Guideline, is the applicant entitled to the disputed medical benefit and the cost of the examinations because they are reasonable and necessary:

i. Is the applicant entitled to payment for the cost of an examination for $2900 for a Psychological Assessment¹, recommended by Dr. Jeremy Frank in a treatment plan dated June 16, 2020?

ii. Is the applicant entitled to payment for the cost of an examination for $2599 for a Neurological Assessment², recommended by Medex Assessments in a treatment plan dated July 20, 2020?

iii. Is the applicant entitled to payment for the cost of an examination for $4830.75 for a Chronic Pain Assessment³, recommended by Dr. Dima Rozen in a treatment plan dated July 21, 2020?

iv. Is the applicant entitled to payment for a medical benefit for $3854.80 for psychological services⁴ recommended by Dr. Jeremy Frank in a treatment plan dated June 16, 2020?

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

RESULT

4For the reasons set out below, I find that the applicant’s impairment falls within the Minor Injury Guideline. The disputed treatment plans are not reasonable and necessary. The claim for interest and expenses of the arbitration are dismissed.

THE LAW - THE MINOR INJURY GUIDELINE

5The main consideration in this appeal is whether the applicant’s injuries fall within the Minor Injury Guideline.

6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 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 also defined in s. 3. Section 18(1) limits treatment when the MIG applies to $3500.

7An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition or a concussion may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The Position of the Parties

8The applicant submits that her injuries are not minor, since, as a result of the accident, she suffered a psychological impairment and has been diagnosed with chronic pain and post-concussive symptoms, all of which take her out of the MIG. Further, despite a pre-accident diagnosis of multiple sclerosis (MS), she states her MS condition was stable for years prior to the accident and symptoms of MS were aggravated after the accident that includes pain/tingling in the arms, trunk and legs.⁵ She submits the accident had a detrimental impact on her physical, cognitive and psychological condition, and that she is entitled to the ongoing medical treatment and assessments in dispute. The applicant incurred the treatment plans in dispute at the recommendations of her treating practitioners.

9The respondent maintains the applicant sustained uncomplicated soft tissue injuries and did not sustain any physical or psychological injury to take her out of the MIG. It denies she has developed a chronic pain syndrome or was diagnosed with a concussion both of which preclude treatment under the MIG. Moreover, and alternatively, it denies the accident caused some of the physical and psychological injuries.⁶ It submits the applicant had relapsing MS at the time of the accident and her symptoms which includes headaches, neck pain, a burning sensation in her right arm and more, was identified and attributed to MS by her family doctor who submitted a medical report in support of the applicant’s applicant for the Canada Pension Plan Disability Benefit (CPP Disability) dated October 17, 2020. The applicant went on short term disability and is currently on Long Term Disability.⁷

10For the reasons set out below, I find that the applicant’s impairment falls within the Minor Injury Guideline.

The Applicant’s Injuries

11On the day of the accident, the applicant attended at the emergency department at Sunnybrook Hospital⁸ complaining of pain in her back, neck, limbs, dizziness, anxiety, and headaches. She was diagnosed with musculoskeletal pain. No diagnostics were ordered and she was discharged home. She re-attended the emergency department on May 7, 2017 for muscle tension in her upper body, neck, back and rib pain. She was diagnosed with soft tissue injury. No diagnostics were ordered. She stated she did not hit her head in the accident and did not lose consciousness.

12The applicant received physical treatment at the Activa Clinics⁹ which she attended regularly from between May 2017 to January 2018 and received treatment chiropractic and physiotherapy treatment for her neck, lower back, and shoulders. The applicant completed a questionnaire for Activa Clinics in which she reported various psychological complaints including but not limited to sleeping difficulties, fear of being in a car as a passenger or driver and anxiety.

13On May 6, 2017, the applicant saw her family doctor, Dr. Ken Ng,¹⁰ with complaints of upper body pain, headaches, and dizziness. His diagnosis of the injuries was muscle strain. On February 3, 2018 a flare up of MS issues is noted. Dr. Ng, states on April 7, 2018, she is experiencing difficulties with sleep due to chronic headaches since the accident. On June 9, 2018, the doctor noted the applicant looked well and her pain was controlled.

14The notes of the family doctor reflect regular visits by the applicant after the accident and continued to at least March 2021¹¹ and include the following:

a. On October 27, 2018, the applicant complained about persistent nausea and headaches. On November 24, 2018 he also notes her pain complaints include:

i. a burning sensation in her right leg,

ii. numbness on the left thigh, on fingers in both hands,

iii. electricity passing on both legs, passes to her feet,

iv. burning sensation on right foot.

b. On April 27, 2019 Dr. Ng notes all these symptoms came after the 2017 MVA.

c. On June 15, 2019 Dr. Ng. notes the symptoms are worsening and not improving and he also notes the patient reports that this is all her previous MS symptoms returning.

d. On August 12, 2019, his notes indicate the applicant is stressed and not able to handle and perform her work duties accurately. She worries about a relapse with MS. She is losing her balance, not able to get up from a chair, not able to do her work properly. She is off work until Sept. 30.

e. On August 19, 2019, the doctor refers to the recent visit for potential MS relapse symptoms. He notes her mood in severely affected, she has had a few falls in the last week. Her energy levels are low. He states the patient is very worried about her MS symptoms.

f. On September 9, October 28 and November 18, 2019, the notes refer to continued persistent MS symptoms which includes back, neck pain, headache, nausea, leg burning (right) right arm burning, left thigh numbness, hand numbness, unsteady gait, and shooting pain down to her feet.

g. On January 6, 2020, he notes persistent anxiety, depression symptoms, headache, neck and back aches.

h. On March 23, 2020, the applicant is diagnosed with parasthesia of the face.

15On October 17, 2020, Dr. Ng completed the medical report for the applicant’s CP Disability Benefit.¹² The medical report cites the medical condition for the benefit is MS with the onset of symptoms starting in 2001. These are listed as:

a. Burning of Right Thigh

b. Hushing of Right deltoid

c. Numbness of left thigh

d. Numbness of left hand

e. Electric pain down both legs

f. Parasthesia of face

g. Headache

h. Nausea

i. Neck and back Pain

j. Functional Limitations includes limited mobility and balance impaired.

The medical report also states:

Due to the debilitating nature of MS, pt (patient) has also been suffering from increased anxiety and mild depression. Although never formally diagnosed.

16On December 14, 2020, Dr. Ng notes there are no headaches or dizziness. On February 22, 2021 he notes in a follow up visit for chronic MS that the symptoms are still present. He indicates the applicant still has numbness and hot patches on limbs. He recommended she obtain psychotherapy.

Causation

17The applicant submits that the medical evidence indicates there is a material change and decline in her medical condition and her impairment is worsening. I find the medical evidence shows a decline in her medical condition however I also find the family doctor medical records and the medical report for the CPP Disability provides medical evidence that the deteriorating condition in 2020 is due to MS and not due to accident related impairments. I agree with the respondent that there are causation issues.

18The applicant at the time of the accident was seeking employment. In May 2017 she accepted a full time position as an interior designer and began work on May 29, 2017, several weeks after the accident. She maintained this employment until August 2019, when she states she had to take medical leave from this position. She was initially on short term disability and then long term disability.¹³ The applicant maintains the medical leave is due to her injuries. The respondent questions whether this leave is due to accident related injuries and submits it is not due to injuries sustained in the accident.

19I agree the applicant demonstrated a high level of functionality as she did start working shortly after the accident, but she claims she had to take a medical leave in August 2019 due to the accident injuries. However, the family doctor records indicate otherwise and indicate the need to stop work in August 2019 came at a time when her MS symptoms flared up.

20The respondent maintains the complaints of: headaches; neck pain; a burning sensation in her right arm; numbness in the three smallest fingers on her left hand; numbness in the left thigh; a burning sensation in the right leg; “electric shocks” down both legs and into her feet; lower back pain; difficulty with balance and walking; and skin sensitivity to her face, are all symptoms that Dr. Ng attributed to the applicant’s MS in the Medical Report for the CPP Disability dated October 17, 2020. I agree and find the complaints as stated in the medical report for the CPP Disability are due to MS and not related accident injuries.

Are the Applicant’s Impairment’s within MIG?

The Pre-Existing Medical Condition

21An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

22The medical records indicate the applicant had a pre-existing medical condition which the applicant claims was aggravated by the accident. The applicant was diagnosed with multiple sclerosis (MS) in 2001.The medical reports indicate this condition has been in remission for 15 years prior to the accident. The applicant had regular semi-yearly follow up visits Dr. Liesly Lee, her treating neurologist at Sunnybrook Hospital who reported following the visits that her MS was stable and there is no indication of it worsening after the accident. On June 17, 2020, Dr. Lee noted no activity from the MS point of view and that the applicant’s reaction to the accident including anxiety and mood are likely playing a much more significant role.¹⁴ This medical opinion however is not consistent with the reports of worsening MS symptoms reported by the family doctor in June 2019, October 2020 and February 2021, as discussed above. The applicant acknowledged as outlined in the family doctor notes on August 19, 2019 that she worried about the relapse of her MS.

23There is no evidence that the relapse of MS symptoms is due to the accident. Dr. Lee in his Progress Note of December 2020 stated he was unsure whether the applicant’s health related difficulties from an emotional perspective appear linked to the accident and whether this led to a flare up of MS symptoms. He deferred to her neurologist in this regard.¹⁵ Dr. Kim, neurologist, in his IE Assessment Report addressed this concern and stated¹⁶:

“MS attacks or relapses are not caused or triggered by motor vehicle collisions and as such the symptoms she is describing are not due to traumatic neurological injury and I do not believe her MS has been activated or aggravated by the motor vehicle accident”.

24As to other pre-existing conditions, the applicant also disclosed to Dr. Izenberg, neurologist in September 2020¹⁷ that she had a longstanding and recent history of headaches prior to the accident. She stated she suffered from headaches about every two months. In October 2016 her family doctor diagnosed her with migraines.¹⁸

25To be removed from MIG on the basis of a pre-existing medical condition, proof must be provided that the condition was aggravated by the accident and the applicant must establish that the pre-existing condition will prevent the applicant from achieving maximum medical recovery if treatment within MIG. In Dr. Kim’s opinion, MS was not aggravated by the accident. Moreover, the applicant has not advanced any argument or evidence that the pre-existing MS condition will prevent her from achieving maximum medical recovery if treated within the limits of MIG. As such, I do not find that the pre-existing MS condition will prevent her from achieving maximum medical recovery if treated within the limits of MIG. She is not removed from MIG on this basis.

Did the applicant sustain a psychological impairment?

26An applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant asserts that her psychological impairments justify removal from the MIG based on the psychological assessment report dated September 2, 2020 of Dr. Jeremy Frank, psychologist, who concluded the applicant met the criteria for a DSM-5 diagnosis of Generalized Anxiety Disorder with significant feature of post traumatic stress and vehicle anxiety, and Major Depressive Disorder. He recommended an initial treatment plan of 12 sessions of cognitive behavioral psychotherapy.

27The applicant states she did not have any psychological symptoms or complaints pre-accident. This is not accurate however as the decoded OHIP summary indicates the applicant had psychotherapy treatment prior to the accident. The respondent submits the medical documents also indicate she saw a psychiatrist in her home country 4-5 years prior to the accident and was diagnosed with a non accident related disorder and prescribed medication for the condition.

28The respondent states the applicant’s baseline symptoms of MS have continued to persist since the accident, unrelated to the accident, causing mental distress. The medical report for the CPP Disability stated that due to the debilitating nature of MS, the applicant had also been suffering from increased anxiety and mild depression.

29In addition to the diagnosis by Dr. Frank, the applicant on May 19, 2020, had a psychiatry consult by telephone with Dr. Anthony Feinstein, physician, of Sunnybrook Hospital with complaints of depression. In his report he stated he could not formally assess the mental health status of the applicant as the interview was over the phone (likely due to the COVID pandemic). He nonetheless stated it was likely that the applicant had an adjustment disorder with mixed anxiety and depressed mood. He also acknowledged there was a past psychiatric history. In his follow up appointment with the applicant in September 2020, he noted that her health-related difficulties from an emotional perspective appear to be linked to her accident.

30The respondent questions the diagnosis of Dr. Frank and the reliability of his report on the basis that the diagnosis is dated June 24, 2020, over 3 years post-accident and was conducted online and over the telephone. It states that Dr. Frank’s diagnosis pertaining to vehicle anxiety is unsupported as the applicant returned to driving immediately after the accident and commuted to work. I agree. I also find that Dr. Frank in his psychological assessment¹⁹ outlines the complaints of psychological injuries which includes the symptoms the applicant has identified as MS symptoms. This includes headaches, nausea, injury to her neck and back, a burning sensation on her right leg and arm, numbness on her left thigh and left hand, and anxiety and depression. These symptoms are identified on the CPP Disability application as MS symptoms.

31I also question the psychiatry consult by telephone with Dr. Anthony Feinstein and his opinion that it was likely that the applicant had an adjustment disorder with mixed anxiety and depressed mood. He stated he could not assess the applicant but proceeded to state a diagnosis although he acknowledged he could not assess the mental health of the applicant.

32The respondent arranged a section 44 in-person psychological insurer assessment completed by Dr. Karen Spivak, psychologist on November 1, 2017. Dr. Spivak concluded in her assessment that the applicant did not meet the criteria for a DSM-5 psychological diagnosis. She also found the applicant catastrophized her pain and magnified symptoms.²⁰ Dr. Spivak was provided additional documents to review and maintained her opinion in a Material Review Report dated January 9, 2018. Her opinion did not change.

33The applicant refers to the Tribunal decision of S.A. v. The Co-Operators General Insurance Company²¹ and submits that as the assessment by Dr. Spivak was completed in 2017 it is not reasonable to rely on Dr. Spivak’s report as it is dated three years prior to the date of the OCF-18. The applicant cites Adjudicator Grant’s decision which found that insurers have an obligation to continue to adjust their files as new information becomes available. It was stated the “respondent continued to rely on the report of its assessor, despite the medical records, reports and referrals from treatment providers that challenged the conclusions of its assessors that the respondent relied on it denying the OCF-18s. I find this conduct led to an unreasonable delay in the applicant receiving treatment that I have found to be reasonable and necessary.”

34I do not agree with the applicant’s position for several reasons. The finding that the respondent had continued to rely on the report of its assessor, despite the medical records, reports and referrals from treatment providers that challenged the conclusions of its assessors was made in the context of assessing the applicant’s claim to an award for unreasonable withholding or delayed payments which is not an issue before the Tribunal. Dr. Spivak completed a further review in January 2018 and did not change her opinion. Moreover, the respondent had the updated family doctor records from 2019 and 2020 which indicated that the applicant’s MS symptoms have flared up and included anxiety and depression.

35I find there is insufficient evidence presented that the applicant sustained a psychological impairment as a result of the accident to remove her from the MIG.

Has the applicant developed a concussion or post concussion symptoms as a result of the accident?

36A concussion and post-concussion issues, if established, may also fall outside the MIG. The applicant asserts that she sustained post concussion symptoms from the accident and she relies on the September 3, 2020 neurology assessment completed by Dr. Aaron Izenberg, neurologist. He concluded that the applicant had sustained a mild traumatic brain injury with associated concussion and suffers from post-traumatic headaches with migraine phenotype. He noted that the applicant had reported she did not hit her head in the accident nor did she lose consciousness. He noted her head may have flexed forward and then backwards at the time of the collision. He found her complaints were consistent with post concussion syndrome as they have persisted over a year after the accident.

37The respondent denies the applicant has established that she suffered a concussion or post-concussion syndrome or chronic post-traumatic headaches that would preclude treatment under the MIG. It maintains further that a diagnosis of “concussion/soft tissue injury” is insufficient to prove a concussion was sustained.

38The respondent relies on its section 44 in-person neurological insurer assessment with Dr. David Kim, neurologist, on August 11, 2017. Dr. Kim concluded the applicant had mild cognitive complaints that were not neurological in nature. He found no evidence of any neurological injury to explain neck pain or radiating pain into the shoulder. He found the mild cognitive complaints were not neurological in nature. Dr. Kim stated that the applicant was not diagnosed with a concussion by the emergency room physician or her family physician post-accident but had been diagnosed by the emergency physician with “concussion-like symptoms.” Dr. Kim concluded in his opinion that a diagnosis of a concussion cannot solely be made on having “concussion like symptoms” because post-concussion symptoms are varied and non-specific i.e. such symptoms can also be due to other types of injuries or diagnoses.

39The respondent submits that Dr. Izenberg was not provided with any records from the applicant’s family physician²² nor did he review neurological section 44 reports.²³ It maintains a negative inference should be drawn from this. I agree. Dr. Izenberg in Appendix A of his report which lists documentation reviewed refers to the clinical notes of Dr. Ng from August 8, 2017. It is not clear if the referenced clinical notes included any family doctor records from 2019 and 2020 that outline the MS symptoms of the applicant. Further, there is no discussion of the family doctor records in his report. Dr. Izenberg in his report refers to the MS of the applicant as a pre-existing condition but he also acknowledged that his neurological examination revealed some symptoms that were chronic and “related to her MS”.²⁴

40In assessing whether an applicant sustained a concussion, the respondent refers to the LAT decision in 17-007714 v Unifund Assurance Company,²⁵ where it was found that the applicant was not functionally impaired as a result of his post-accident symptoms as he returned to full-time hours and regular duties 1 week post-accident. In this matter the respondent argues the applicant returned to work in May 2017, immediately after the accident.

41I agree the applicant demonstrated a high level of functionality as she did start working shortly after the accident and continued to work for more than 2 years.

42Based on the totality of the evidence, I find there is insufficient medical evidence presented by the applicant to find that the applicant suffers from concussion like symptoms caused by the accident which remove her from the MIG.

CHRONIC PAIN

43The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. A diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain. In this appeal, the applicant relies on the chronic pain assessment completed on September 14, 2020 by Dr. Dima Rozen²⁶ who opined that the applicant’s impairments are consistent with post concussive syndrome, chronic myofascial pain and that she suffers from chronic pain syndrome.

44The applicant also refers to the clinical notes of Dr. Lee who on July 6, 2017 noted the applicant was plagued by chronic headaches, neck pain, stiffness, transient limb tingling, and feelings of being light/headed/unsteady. As mentioned these were identified as MS symptoms.

45On December 7, 2020, Dr. Feinstein noted there are numerous accident-related complaints most notably multifocal pain which has become chronic. The family doctor notes of June 9, 2018 refer to ”chronic pain” but there is no explanation or detail provided.

46The respondent questions the diagnosis by Dr. Rozen made 3 ½ years post-accident. It maintains further that the applicant has not demonstrated that she meets any of the six criteria²⁷ outlined in the Tribunal decision file 17-007825 v. Aviva Insurance Canada to make a finding of chronic pain, as there is 1) no use of prescription drugs beyond the recommended duration, 2) no excessive dependence on providers, 3) no secondary physical deconditioning 4) no social withdrawal, 5) no disability or 6) no functional impairment or psychological sequelae. Chronic pain must be continuous, and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability.

47It states the applicant has functioned well by returning to work for over 2 years after the accident. She has not attended for any rehabilitative treatment since January 2018 and does not rely on prescription pain medication. It states there is no evidence of social withdrawal or secondary physical deconditioning as she had returned to work and worked for over two years after the accident. I find that the return to work after the accident for 2 years is not evidence of chronic pain that is continuous and of such a severity that it causes suffering and distress accompanied by functional impairment or disability.

48I also question the conclusion advanced by Dr. Rozen that the applicant has sustained permanent physical, cognitive and psychological impairment as a result of the accident. She states the applicant was not able to return to many of her pre-accident activities of daily living, self care activities and driving. This however is not accurate. The evidence such as in Dr. Spivak’s report indicates on January 9, 2018 the applicant continued to work full time, was independent with self care, and continued to socialize with friends and her extended family and had resumed driving.²⁸

49Moreover, Dr. Rozen describes the applicant’s impairment as including pain in her neck, arms, lower back, legs, and feet, headaches, depression and anxiety These complaints were listed by the family doctor in his clinical notes as symptoms of MS. The respondent states Dr. Rozen was not provided with the complete clinical notes of the family doctor.²⁹ In her report Dr. Rozen reviewed 4 entries of the family doctor from 2017. It submits her report is questionable on this basis and an adverse inference should be drawn. I agree. Dr. Rozen refers in her report to the applicant’s condition and changes in MS including the reported symptoms of burning and tingling sensations in her extremities but she then states she cannot comment on this condition and defers to a recently completed neurological report (which is not identified).

50Based on the totality of the evidence before me, I find there is insufficient evidence the applicant suffers from chronic pain from the accident.

51Accordingly, for the reasons noted above, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments consisting of a pre-existing medical condition that precludes maximum medical recovery if treated within MIG, a psychological impairment, concussion like symptoms and chronic pain warrant removal from the MIG.

Are the Treatment Plans Reasonable and Necessary?

52Having determined that the applicant has not established that due to her injuries she should be removed from the MIG, and in the absence of evidence that the MIG limits of $3500 have been exhausted, I will proceed with an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under sections 14 and 15 of the Schedule.

53The standard to assess if a treatment plan is reasonable and necessary requires an analysis as follows and whether:

1. The treatment goals, as identified, are reasonable;

2. The treatment goals are being met to a reasonable degree; and,

3. The overall costs of achieving these goals are reasonable.

54The onus to prove that claimed medical benefits are reasonable and necessary lies with the applicant.

The OCF-18 for a psychological assessment and psychological services

55I find based on the medical evidence that the applicant has not met her onus to show that she sustained a psychological impairment as a result of the accident. As such, the psychological assessment and psychological treatment are not reasonable and necessary.

56The OCF-18 for a chronic pain assessment does not identify any goals, state how the treatment goals would be met or are reasonable. On this basis it is not possible to assess if the treatment goals are reasonable and how treatment goals are being met to a reasonable degree. The OCF-18 in dispute for a chronic pain assessment is not reasonable and necessary.

57As to the neurological assessment, I agree with the respondent that the applicant was seeing her treating neurologist at Sunnybrook on a bi-yearly basis and as such the treating neurologist would be in the position to perform a clinical examination and the testing of the applicant to identify any neurological concerns. Moreover, the applicant was assessed by Dr. Kim who did not find any neurological impairment. For these reasons, the neurological assessment is not reasonable and necessary.

58Lastly, payment for a treatment plan for an assessment or examination is not to exceed $2000 plus tax under section 25 (5)(a) of the Schedule even if it was found to be reasonable and necessary.

Claims for Expenses of the Arbitration

59The applicant in the final paragraph of its written submissions requests an order that the applicant is entitled to the expenses of the arbitration. This was not listed as an issue in dispute in the Tribunal Order dated January 12, 2020. The applicant has not advanced any submissions to support this claim or identify any expenses. There is no basis upon which to order expenses of the arbitration.

Interest

60The claim for interest is dismissed.

Conclusion

61For the reasons outlined, I find that the applicant’s impairment falls within the Minor Injury Guideline. The disputed treatment plans are not reasonable and necessary. The claim for interest is dismissed. The claim for expenses for the arbitration is dismissed.

Released: March 21, 2022

Thérèse Reilly, Adjudicator

Footnotes

1. 1The OCF-18 is produced at tab 28 of the respondents document brief. It is unsigned. $2700 is allocated for a mental health assessment.
2. 2The OCF-18 is produced at tab 30 of the respondents document brief. It is unsigned. The injuries listed include whiplash, dizziness, malaise and fatigue, visual disturbances and headaches and differs from the list of injuries noted in the other three OCF-18s in dispute.
3. 3The OCF-18 is found at tab 32 of the document brief of the respondent and is unsigned. It does not identify any goals of treatment. $2000 is assigned for the assessment and $2275 is allocated for preparatory services.
4. 4The unsigned OCF-18 is reproduced at tab 29 of the respondent’s document brief and page 39 of the applicant’s document brief. The OCF-18 states the treatment goals are specified in the September 2, 2020 assessment report. $2244.12 is allocated to mental health therapy. $625.84 is allocated to a mental health assessment.
5. 5Written submissions of the applicant, paragraph 11.
6. 6Written submissions of the respondent, paragraph 11.
7. 7Written submissions of the applicant, paragraph 2.
8. 8Sunnybrook Hospital Records dated June 7, 2017, applicant document brief. tab 9
9. 9Activa Clinics, clinical cecords dated August 31, 2020 – see tab 8, applicant document brief.
10. 10Dr. Ken Ng, clinical records dated August 8, 2017, tab 7 (The clinical notes are not legible), and, Dr. Ng’s clinical notes, Total Health Management Records dated May 21, 2021, tab 16.
11. 11Dr. Ken Ng, Clinical records, Total Health Management, applicant document brief, tab 16, pages 73 to 91.
12. 12Medical Report Canada Pension Plan Disability Benefit, respondent document brief, dated October 17, 2020, tab 16. See also paragraph 11 of the respondent written submissions.
13. 13Applicant written submissions, paragraph 2.
14. 14Written submissions of the applicant, paragraph 11, and Sunnybrook Hospital Records dated October 30, 2020, applicant document brief, tab 11.
15. 15Dr. Lee, Progress Note, dated Dec. 7, 2020, Sunnybrook Health Science Centre, applicant document brief, tab 11.
16. 16Dr. Kim, Neurologist, Neurological Report dated October 10, 2017, respondent document brief, tab 20.
17. 17Dr. Izenberg, Neurological Assessment dated September 4, 2020, applicant document brief tab, 14.
18. 18Respondent written submissions, paragraph 23.
19. 19Psychological Assessment Report, Dr. Frank, dated September 4, 2020, page 10.
20. 20Dr. Frank also administered a test that assesses if an applicant is magnifying symptoms. He did not find the applicant magnified her symptoms.
21. 21S.A. v. The Co-Operators General Insurance Company, 2021 CanLII 28687 (LAT 20-001166)
22. 22Written submission of the respondent, paragraphs 10 and 20.
23. 23Written submissions of the respondent, paragraph 20
24. 24Written submissions of the respondent, paragraphs 19 and 20.
25. 2517-007714 v Unifund Assurance Company, 2018 CanLII 141012 (LAT), tab 22, respondent brief.
26. 26Chronic Pain Assessment Report, Dr. Rozen, dated September 22, 2020, tab 15, applicant document brief.
27. 27These six criteria are from the American Medical Association (AMA) guidelines and are discussed in 17- 007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) at para 6.
28. 28Section 44 Report of Dr. Spivak, respondent document brief, tab 12, page 10.
29. 29Written submissions of the respondent, paragraph 10.