Perri v. Allstate Canada, 2022 CanLII 65660

Perri v. Allstate Canada, 2022 ONLAT 20-010160/AABS

Licence Appeal Tribunal File Number: 20-010160/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:

Frank Perri

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Danielle Ralph, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on October 18, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").¹ He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") after his claims for benefits were denied by Allstate Canada, ("the respondent").

2The applicant was involved in a serious previous accident on April 3, 2015. As of result of that accident, he sustained injuries and impairments identified as: intracranial hemorrhage, left occipital subarachnoid hemorrhage, hemorrhagic contusions, nasal fracture, facial lacerations, a left vertebral artery dissection, fracture of C5-7, left shoulder dislocation with massive rotator cuff tear, a left brachial plexus injury, a fractured pelvis, fractured right tibia and fibula, pilon fracture, poor memory, frontal bone fracture, frontal lobe contusion, scalp laceration, right pneumothorax, right orbital wall fracture, small left occipital ICH, right greater sphenoid wing fracture, left lower leg DVT, small hemorrhagic contusions in anterior frontal lobes and SAH traces, left apical bullae, post-traumatic stress disorder with flashbacks and fear of being in a vehicle, major depressive disorder, dis-social personality disorder, anxiety, panic attacks, and depression.²

3An award was not listed as an issue in dispute in the Case Conference Order, however the applicant made several references to the respondent having a duty to act in good faith. As such, I have added an award as an issue in dispute for the purposes of this hearing.

ISSUES

4The issues to be determined for the purposes of this hearing are as follows:

i. Is the applicant entitled to $2,200.00 for a psychological assessment recommended by Somatic Assessments and Treatment Clinic in a treatment plan ("OCF-18"), dated February 15, 2019?

ii. Is the applicant entitled to $2,651.24 for an occupational therapy in-home assessment, recommended by Somatic Assessments and Treatment Clinic in an OCF-18, dated September 9, 2019?

iii. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

5The applicant withdrew issue (ii) in his submissions, as such, I have only made a finding with respect to issues (i), (iii) and (iv).

RESULT:

6The applicant is not entitled to the OCF-18 for a psychological assessment, as he has failed to discharge his evidentiary onus to demonstrate that it was reasonable and necessary. Further, the applicant is not entitled to an award and no interest is payable.

ANALYSIS

OCF-18 for a Psychological Assessment:

7To receive payment for a treatment and assessment plan under s.15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable. The applicant's submissions are silent on whether the goals can be met to a reasonable degree and whether the overall costs of achieving the goals is reasonable.

8The OCF-18 in dispute was submitted by Dr. Sharleen McDowall, psychologist.³ Despite the medical evidence, Dr. McDowall noted that the applicant did not have any pre-existing disease, condition or injury that could affect his response to the treatment proposed.⁴

9The clinical notes and records of Dr. Margaret Voorneveld, psychologist, demonstrate that the applicant was receiving psychological treatment prior to this accident for his 2015 accident and the records of the applicant's family physician showed that the applicant was receiving care from multiple treating practitioners following his 2015 accident. In 2018, the applicant was seeing Dr. Shree Bhalerao, psychiatrist, for pre-existing psychological impairments.⁵ The goals of the OCF-18 were for the applicant to return to his activities of daily living and pre-accident work activities.⁶

10The applicant submits that the psychological assessment is reasonable and necessary as he has an ongoing psychological impairment as a result of this accident. He relies on the authority of 17-006460 v. Scottish & York.⁷ The fact pattern in the cited authority is distinguishable as the applicant was not involved in a previous serious accident; had been diagnosed with psychological impairments as a result of the accident by a s.44 assessor; and there were no validity concerns with respect to the applicant's self-reporting.

11The respondent submits that the psychological assessment is not payable as the applicant has failed to demonstrate that he sustained a psychological impairment as a result of the accident. I agree with the respondent for the below reasons.

12The records of Dr. Voorneveld are unpersuasive for the following reasons: Firstly, the records are mostly handwritten, not transcribed and are almost completely illegible. Secondly, for the entries that are legible (March 26, 2019, April 23, 2019, and July 25, 2019) there is no reference to the October 2018 accident.⁸ Thirdly, the applicant was receiving psychological treatment from this psychologist prior to this accident and from the legible records, Dr. Voorneveld did not conclude that this accident exacerbated the applicant's pre-existing psychological conditions.⁹ Lastly, the applicant has the evidentiary onus to demonstrate that this assessment is reasonable and necessary and has failed to provide any explanation on why these records were not transcribed for the Tribunal to review.

13I place little weight on the provisional assessment administered by Mandy Fang, and supervised by Dr. McDowall, as there is no collaborating medical evidence to support the applicant's self-reporting of: deteriorated sleep quality, nightmares, disturbing dreams, dizziness, headaches, fatigue, difficulty with concentration, memory issues, lack of appetite and driving anxiety as a result of this accident.¹⁰

14Moreover, Ms. Fang and Dr. McDowall did not provide an opinion of whether the applicant's pre-existing psychological conditions were exacerbated by this accident.¹¹

15The psychological assessment conducted by Merlin Tong, registered psychotherapist, and supervised by Dr. McDowall, dated February 19, 2021, is unpersuasive, as the report is based entirely on the self-reporting of the applicant. This self-reporting is inconsistent with the medical records and s.44 assessment reports of Dr. David Prendergast, psychologist, and Dr. Charles Ikejiani, orthopaedic surgeon.

16Firstly, Dr. Prendergast conducted various psychometric tests including: The Rey 15 Item Test, TOMM Test, The Pain Symptom Rating Scale, SIMS Test, and Brief Carroll Depression Scale.¹² Meanwhile, Mr. Tong and Dr. McDowall conducted testing with respect to the Pain Patient Profile Assessment ("P3").¹³ Mr. Tong and Dr. McDowall failed to provide an explanation of why additional testing was not administered when validity concerns were raised by Dr. Prendergast.

17Secondly, Mr. Tong and Dr. McDowall did not provide an opinion on whether the applicant's pre-existing psychological impairments were exacerbated by this accident. It appears that they did not have a copy of the records from Dr. Voorneveld and, had they received this prior to the assessment, they would have been aware that the applicant was receiving psychological treatment prior to this accident and from the records that are legible, there is no reference to this accident.

18Thirdly, I place little weight on the following self-reporting made by the applicant:

i. The applicant advised that he was working at the time of this accident and stopped working following this accident because of his accident-related physical and psychological injuries. This is entirely inconsistent with the records of Dr. Yu, wherein it is clear that the applicant was not working at the time of this accident.¹⁴ The Disability Certificate ("OCF-3") completed by Dr. Yu on July 10, 2015, noted that the applicant was not working at the time of that accident.¹⁵ On May 17, 2017, Dr. Sanja Paleksic, physical medicine and rehabilitation specialist, noted that the applicant was unemployed.¹⁶ Further, the applicant advised s.44's assessors, Dr. Prendergast¹⁷ and Dr. Ikejiani¹⁸, that prior to the October 2018 accident, he was not working.

ii. The applicant advised that he had largely recovered from his physical injuries sustained in the 2015 accident, which is contrary to the medical evidence. On May 9, 2018, just months prior to this accident, Dr. Paleksic concluded that the applicant had chronic complications of orthopaedic multi-traumatic nature and traumatic brain injury that were permanent.¹⁹ Dr. Paleskic also noted that the applicant had mood disorder, lack of energy and behavioral issues.²⁰

iii. The applicant advised that he was independent with his activities of daily living and attendant care tasks prior to this accident. This is inconsistent with the records of Dr. Yu. On May 17, 2017, Dr. Paleksic noted that the applicant required 24-hour supervision.²¹ On July 17, 2017, Dr. Barbara Huisman, registered physiotherapist, concluded that the applicant required 24-hour assistance with attendant care and housekeeping care tasks.²² Further, Dr. Huisman noted that the applicant's social and leisure activities had been significantly impacted and he required assistance with community reintegration activities.

19I prefer the report of Dr. Prendergast, s.44 assessor, dated August 23, 2019. Dr. Prendergast conducted a number of validity testing. The Rey 15 Item Test demonstrated that there were concerns with the applicant's level of effort with respect to testing.²³ On the TOMM Test, the applicant fell well outside of normal limits on both trials, indicating embellishment and exaggeration of cognitive issues.²⁴ Dr. Prendergast opined that such extreme scores cannot be explained by a clinically valid head injury, pain problems or emotional turmoil.²⁵ Dr. Prendergast further opined that usually the only viable explanation for such impoverished responses would be poor effort.²⁶ The applicant's score on the SIMS Test was reflective of embellishment and exaggeration.²⁷ On the Pain Symptom Rating Scale, the applicant's score fell outside of normal limits on four primary validity scales.²⁸ Dr. Prendergast noted that the applicant was endorsing emotional problems, including depression on both the Brief Carroll Depression Scale and on the Pain Symptom Rating Scale, however he also invalidated the various formal psychometric validity measures to a significant degree.²⁹ As a result, Dr. Prendergast opined that no clinically valid and objective data could be gathered from the test results to support a mental health condition.³⁰

20While I acknowledge the applicant's self-reporting of how this accident exacerbated his pre-existing conditions, I have placed little weight on this due to the validity testing issues expressed by Dr. Prendergast. Further, the applicant has failed to refer to any contemporaneous medical evidence that supports his position that his pre-existing conditions were exacerbated by this accident. Dr. Prendergast concluded that there was no compelling medical evidence to support a diagnosis of a psychological impairment as a result of the accident.³¹

21The applicant has also failed to provide any medical evidence contemporaneous with the date of the OCF-18 that demonstrates that the applicant sustained psychological impairments as a result of the accident that require a psychological assessment.

22For these reasons, I find that the applicant has failed to demonstrate that the psychological assessment is reasonable or necessary.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

23It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. In order to meet the threshold for an award, the respondent's conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The evidentiary onus remains on the applicant to demonstrate he qualifies for an award.

24Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

25In this case, I find that the applicant is not entitled to an award. While I acknowledge that the respondent has an ongoing duty to assess and reassess a claim as new information becomes available. I agree with the respondent that the records of Dr. Yu, and Dr. Voorneveld and s.25 report of Mr. Tong and Dr. McDowall are not persuasive to support that the respondent has unreasonably withheld or delayed payment of a benefit. As discussed above, the applicant is not entitled to a psychological assessment. Moreover, I would like to point out that insurers are not required to seek an Insurer's Examination for every piece of new evidence.

Interest

26Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

CONCLUSION AND ORDER

27For the reasons set above, the applicant is not entitled to the OCF-18 for a psychological assessment, interest or an award, and the application shall be dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Records from Dr. Katie Yu (Part 1), pages: 3, 38, 54, 60, 68, 70, 77, 78, 89, 91, 103, 152 and Records from Dr. Katie Yu (Part 2) page: 259.
3. 3OCF-18 dated February 15, 2019 from Somatic Assessments.
4. 4Ibid.
5. 5Records from Dr. Katie Yu (Part 2), pages: 259, 260, 277 and 278.
6. 6OCF-18 dated February 15, 2019 from Somatic Assessments.
7. 7Applicant v Scottish & York, 2018 CanLII 112111 (ON LAT).
8. 8Records from Dr. Voorneveld, pages: 3, 4, 5.
9. 9Ibid.
10. 10OCF-18 dated February 15, 2019 from Somatic Assessments.
11. 11Ibid.
12. 12Respondent's Submissions, Tab 1, Psychology In Person Examination, dated August 23, 2019.
13. 13Psychological Assessment by Dr. McDowall dated February 19, 2021.
14. 14Records from Dr. Katie Yu (Part 1) pages: 55 and 163 and Records from Dr. Yu (Part 2), pages: 189 and 190.
15. 15Records from Dr. Yu (Part 2), pages: 224-227.
16. 16Records from Dr. Yu (Part 1), pages: 69-72.
17. 17Respondent's Submissions, Tab 1, Psychology In Person Examination, dated August 23, 2019.
18. 18IE Orthopaedic Report dated August 23, 2019, page 6.
19. 19Records from Dr. Katie Yu (Part 1), pages: 13-14.
20. 20Ibid.
21. 21Ibid, pages: 69-72.
22. 22Respondent Submissions, Tab 4, Clinical Note from Optimal Outcomes, dated July 17, 2017.
23. 23Respondent's Submissions, Tab 1, Psychology In Person Examination, dated August 23, 2019.
24. 24Ibid.
25. 25Ibid.
26. 26Ibid.
27. 27Ibid.
28. 28Ibid.
29. 29Ibid.
30. 30Ibid.
31. 31Ibid.