Licence Appeal Tribunal File Number: 20-006039/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:
Yousif Sermez
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Chelsea Gilder, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION [AND ORDER]
BACKGROUND
1The applicant, Yousif Sermez, was involved in an automobile accident on August 22, 2018, and sought benefits from the respondent, Economical Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule").
2The respondent determined that the applicant's injuries fell within the Minor Injury Guideline and denied him medical benefits outside the $3,500.00 funding limit available under the Schedule. The respondent also denied the applicant's claim for a non-earner benefit. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
a. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 27, 2019 to date and ongoing?
b. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and subject to the $3,500.00 limit under the Minor Injury Guideline? If not, then:
i. Is the applicant entitled to $226.00 for physiotherapy, recommended by Activa Mississauga in a treatment plan (OCF-18) dated December 19, 2018 in the amount of $1,321.15 and partially approved in the amount of $1,094.15?
ii. Is the applicant entitled to $2,937.44 for physiotherapy, recommended by Activa Mississauga in a treatment plan (OCF-18) dated March 4, 2019?
iii. Is the applicant entitled to $2,144.93 for a psychological assessment, recommended by Assurance Medical Services in a treatment plan dated May 1, 2019?
iv. Is the applicant entitled to $3,715.87 for psychological counselling, recommended by Assurance Medical Services in a treatment plan dated July 4, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to a non-earner benefit. He has established entitlement to treatment outside the Minor Injury Guideline on account of his accident related psychological impairments. The applicant is entitled to the disputed physiotherapy services and psychological services, but not the disputed psychological assessment.
ANALYSIS
Non-earner benefit
5The applicant bears the onus of establishing entitlement to the benefits he seeks in this application. The eligibility requirements for a non-earner benefit are set out in s. 12 of the Schedule. The applicant must show, on a balance of probabilities, that he suffers a complete inability to carry on a normal life as a result of the accident.
6Section 3(7)(a) of the Schedule defines a suffering a "complete inability to carry on a normal life" as sustaining an impairment that continuously prevents the person from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
7In Heath v. Economical Mutual Insurance Company, ("Heath")2 the Ontario Court of Appeal set out general principles to assist triers of fact in interpreting and applying the non-earner benefit provisions. Heath urges a claimant-focused inquiry that reflects the high threshold created by the language of the Schedule.
8The interpretive approach starts with a comparison of the claimant's activities and life circumstances over a reasonable period before and after the accident. A "reasonable" pre-accident period will depend on the facts of each case, but more than a "snapshot" will be required. While all the claimant's ordinary pre-accident activities should be considered, greater weight may be assigned to those activities which the claimant identifies as being important to his or her pre-accident life.
9To establish his complete inability to live a normal life, the claimant must prove uninterrupted accident-related disability or incapacity. But the phrase "engaging in" is to be interpreted qualitatively. Merely "going through the motions" of an activity will not amount to engaging in it.
10Finally, in cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced during or after the activity practically prevents the claimant from engaging in it.
11The evidence the applicant has presented in support of his non-earner benefit claim falls far short of the eligibility threshold set out in the Schedule and discussed in Heath. The applicant relies on a disability certificate dated October 19, 2018 as evidence that he is unable to go for his usual walks and writing and reading are impacted as he cannot sit for too long. He submits that he suffers a substantial inability to perform his housekeeping and home maintenance tasks. The applicant further submits, as noted in Dr. M. Singh's psychological assessment, that his wife assists him with dressing (putting on pants). He submits that before the accident he was responsible for cooking and cleaning but that afterwards his wife had to take over his share of domestic tasks. He submits he has been unable to resume his normal walking routine, has reduced how often he visits with friends, and cannot help around his church. He reported to Dr. Singh that he feels he's not the same person, feels useless, misses helping around the church, often is restless and becomes angry more easily.
12The applicant's reports of limitations due to the accident do not establish uninterrupted accident-related disability or incapacity. First, the applicant has not tendered evidence, but for his post-accident self reports to assessors, as to his pre-accident daily activities. Evidence establishing the applicant's activities over a reasonable pre-accident period is the starting point for the comparative analysis of non-earner benefit entitlement as set out in Heath.
13Second, although the applicant reports some difficulty in engaging in some of his pre-accident activities, and a reduction in the frequency with which he engages in others, he has not demonstrated that he is continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
14Third, with pacing, breaks, and the occasional aid of a family member, the applicant is still substantially able to engage in the activities he says are impacted by his accident-related impairments, such as walking, reading, writing, and self-care. The only activity the applicant submits he is completely unable to engage in is cooking and cleaning, as his wife has taken over his share of these responsibilities. However, without evidence to show the extent of the applicant's housekeeping responsibilities before the accident, I am unable to assess whether he is continuously prevented from engaging in them. Because he does not suffer from uninterrupted accident-related disability or incapacity, he does not suffer a complete inability to carry on a normal life and no non-earner benefit is payable.
Minor Injury Guideline
15The applicant bears the onus of proving, on a balance of probabilities, that his accident-related injuries are not predominantly "minor" as defined in the Schedule. The term "minor injury" is defined in s. 3(1) as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."
16If the applicant's injuries are predominantly minor, the Minor Injury Guideline will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. Where the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident.
17Section 18(2) of the Schedule provides that the $3,500.00 limit "does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline."
18The applicant submits that he should be removed from the Minor Injury Guideline because he suffers from chronic pain and psychological impairments from the accident that exceed the definition of a minor injury. He also submits that he should be excepted from the $3,500.00 funding cap because of his pre-existing conditions.
19I find that the applicant sustained psychological impairments in the accident that exceed the definition of a minor injury. On March 6, 2019, the applicant's family physician, Dr. Pham-Nguyen, diagnosed him with post-traumatic stress disorder as a result of the accident. Dr. Pham-Nguyen discussed medication versus counselling for the treatment of post-traumatic stress disorder. The applicant preferred medication. Dr. Pham-Nguyen prescribed escitalopram. Dr. Pham-Nguyen's clinical notes and records document the applicant's increased anxiety and depression and follow up visits for post-traumatic stress disorder on April 26, 2019 and June 18, 2019, when he increased the applicant's dosage of escitalopram. This diagnosis is significant and exceeds the clinically associated sequelea, or consequences, of minor injuries.
20The respondent submits that Dr. Pham-Nguyen's diagnoses should be discounted because he did not conduct any testing and there is no clear indication of what he based his diagnoses on. I reject this submission. Dr. Pham-Nguyen's clinical notes give me no reason to doubt whether his clinical assessment is sound. These are clinical notes that contemporaneously recorded both the applicant's subjective complaints and the doctor's clinical observations. They document the applicant's reports of anxiety, trouble sleeping at night due to bad dreams, and irritability. It is within the scope of practice of a family physician to diagnose and treat mental health conditions. The respondent has led no evidence to show that psychometric testing is required for a valid psychiatric diagnosis. I place considerable weight on Dr. Pham-Nguyen's evidence, as the applicant's treating physician of many years.
21The respondent relies on the psychological assessment conducted by its own assessor, Dr. M. Mandel on May 13, 2019. Dr. Mandel conducted a clinical interview and performed three psychometric tests: the Personality Assessment Inventory (PAI), which assesses personality traits and characteristics; the Multidimensional Pain Inventory (MPI), which assesses the chronic pain experience; and the Structured Inventory of Malingered Symptoms (SIMS), which assesses psychosis, neurologic impairment, amnestic disorders, low intelligence and affective disorders. Dr. Mandel concluded that there was a lack of consistent objective information that would support a DSM V diagnosis.
22I attach limited weight to Dr. Mandel's findings for three reasons. First, Dr. Pham-Nguyen's clinical notes and records do not appear on the list of documentation reviewed by Dr. Mandel. The applicant received his post-traumatic stress disorder diagnosis just weeks prior to Dr. Mandel's in-person assessment on April 17, 2019. Dr. Mandel conducted a paper review dated July 31, 2019, but the clinical notes and records of the family physician do not appear to have been available for review at that time either. While it may be the case that the applicant had not yet obtained these records to provide to the respondent, they provide important information about the applicant's history and the fact that they were unavailable to be considered by Dr. Mandel undermines the ultimate reliability of his report.
23Second, it is unclear from the summary of Dr. Mendel's clinical interview whether the applicant specifically denied the presence of symptoms when directly asked about them, or failed to volunteer this information. The absence of reported symptoms is not the same as the reported absence of symptoms. This ambiguity is troubling because the applicant reported to Dr. Mandel that he had been prescribed escitalopram by his family doctor. Even in the absence of the clinical notes and records, this should reasonably have prompted focused inquiry by the assessor. Instead, Dr. Mandel observes that the applicant "described no specific symptoms" that would suggest panic attacks or generalized anxiety. As a clinical finding, this is vague and inconclusive. The general thrust of Dr. Mandel's report is an absence of clinically significant findings. But the inability of this assessor to detect or elicit information supportive of a diagnosis does not mean that grounds for a diagnosis do not exist.
24Third, none of the psychometric tests administered by Dr. Mandel are targeted at diagnosing post-traumatic stress disorder. The testing was targeted at assessing personality disorders, dimensions of his chronic pain experience, and symptom malingering. There is nothing in the applicant's presentation during the psychometric tests that tends to contradict or undermine the weight of the applicant's existing psychiatric diagnosis. For these reasons, Dr. Mandel's report does little to diminish the strength of the applicant's evidence that he suffers from an accident-related psychological impairment justifying treatment outside the Minor Injury Guideline.
25Because the applicant sustained psychological impairments in the accident that exceed the definition of a minor injury, it is not necessary at this stage for me to consider whether he suffers from chronic pain syndrome or whether his pre-existing conditions meet the test for removal from the Minor Injury Guideline set out in s. 18(2) of the Schedule. The Minor Injury Guideline does not apply. It is therefore necessary for me to engage in an analysis of whether the individual medical benefits he seeks are reasonable and necessary as a result of the accident.
Medical benefits
26The applicant bears the onus of establishing, on a balance of probabilities, that the medical benefits he seeks are reasonable and necessary as a result of the accident. This is the test set out in s. 15 of the Schedule.
27The applicant seeks funding for four treatment and assessment plans (OCF-18s):
Date of OCF-18
Proposed treatment/ assessment
Amount claimed
December 19, 2018
Physiotherapy services
$226.00 (partially approved)
March 4, 2019
Physiotherapy services
$2,937.44
May 1, 2019
Psychological assessment
$2,144.93
July 4, 2019
Psychological services
$3,715.87
28The first two treatment plans for physiotherapy were partially approved or denied because the applicant had exhausted the funds available to him under the Minor Injury Guideline. The second two treatment plans, for a psychological assessment, were denied based on Dr. Mandel's opinion that the applicant failed to meet the symptom threshold for a psychiatric diagnosis.
Physiotherapy services
29The applicant still bears the onus of proving the reasonableness and necessity of the proposed treatments and assessments. Treatments denied for exceeding the Minor Injury Guideline limit are not automatically reasonable and necessary if the Tribunal determines that the Minor Injury Guideline does not apply.
30However, in this case, the applicant has established the reasonableness and necessity of the proposed physiotherapy services. His family doctor recommended that the applicant obtain physiotherapy treatment for his accident related injuries on August 24, 2018 and on March 12, 2019. Although the applicant had pre-existing degenerative conditions including osteoarthritis, it is the evidence of his family doctor, based on x-ray results from March 12, 2019, that the applicant's osteoarthritis worsened after the accident. Even the respondent's own assessor, orthopedic surgeon Dr. B. Taromi, acknowledges a degree of exacerbation to the applicant's arthritis because of the accident. I therefore accept the applicant's submission that his pre-existing degenerative conditions were aggravated by the accident. It is well-established that an accident need not be the sole cause of an impairment to justify treatment under the Schedule, it must simply be a direct cause of the impairment.3 In this case, the direct causation test is met.
31Given the two recommendations made by the applicant's family physician that he pursue physiotherapy for his accident-related impairments, I find that the applicant has made out the reasonableness and necessity of the disputed physiotherapy services. While I am alert to Dr. Taromi's opinion, set out in his May 13, 2019 report, that the applicant's ongoing impairments are related to his arthritis and not the accident, it is unclear how he determined that the applicant had reached maximum medical recovery in relation to his accident related sprain and strain injuries. Evidently, the causation of the applicant's ongoing impairments is multi-faceted. However, on a balance of probabilities, I accept Dr. Pham-Nguyen's assessment and find that the accident likely continued to contribute to the applicant's symptoms at the time the treatment was proposed.
Psychological assessment and counselling services
32The proposal for a Psychological Assessment, made by Dr. Singh in a May 1, 2019 treatment plan, is not reasonable and necessary as a result of the accident. I make this finding for two reasons. First, it is clear from the treatment plan itself that Dr. Singh was unaware of the concurrent treatment and follow-up the applicant was receiving from his family doctor. This information is relevant to determining whether additional psychological investigation would be necessary for diagnostic purposes. Second, because the applicant had been diagnosed and was receiving treatment in the primary care setting, the proposed assessment, which aimed to determine a diagnosis and an appropriate course of treatment, is duplicative and unnecessary.
33Although Dr. Singh's assessment falls short of the test for entitlement to medical benefits under s. 15 of the Schedule, the applicant underwent the assessment on June 27, 2019 and the report from that assessment is evidence before me that I must consider. That assessment report identifies symptoms of anxiety and depression in the applicant which Dr. Singh recommends 12 sessions of cognitive behavioural therapy to treat. Dr. Pham-Nguyen also recorded the applicant's anxiety and depressive symptoms when he diagnosed post-traumatic stress disorder. Although Dr. Singh comes to different diagnostic conclusions than Dr. Pham-Nguyen, those conclusions are not incompatible with each other. I am satisfied, based on Dr. Singh's clinical assessment, that the disputed psychological services meet the test of being reasonable and necessary as a result of the accident. It is possible to conclude, as I do here, that a secondary assessment by a different care provider (Dr. Singh) is duplicative and unnecessary, while also finding that the resulting treatment recommendations are reasonable and necessary. I make this finding because the treatment proposed by Dr. Singh, 12 sessions of counselling, would complement and enhance the care provided to the applicant by his family physician.
34For these reasons, I find that the applicant is entitled to the proposed physiotherapy and psychological services, but not the disputed psychological assessment.
CONCLUSION AND ORDER
35The applicant has proven on a balance of probabilities that he is entitled to treatment outside the Minor Injury Guideline. He has established entitlement to the disputed physiotherapy treatment and psychological treatment with interest. He has not proven entitlement to a non-earner benefit or to the disputed psychological assessment.
36The respondent is liable to pay $6,879.31 plus interest calculated in accordance with s. 51 of the Schedule.
Released: February 9, 2022
Theresa McGee
Vice-Chair
Footnotes
- O. Reg. 34/10.
- 2009 ONCA 391 ["Heath"].
- Sabadash v. State Farm et al., 2019 ONSC 1121.