Licence Appeal Tribunal File Number: 20-015158/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:
Xaysha Williams
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Xaysha Williams, Applicant
Antonio Meringolo, Counsel
For the Respondent:
Unifund Assurance Company
Ken Yip, Counsel
HEARD:
In Writing
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant was involved in two automobile accidents on June 29, 2014, and October 8, 2016. She sought benefits pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010 (“Schedule”)1.
2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
3The issues to be decided in the hearing related to the June 29, 2014 accident are:
Is the applicant entitled to $16,283.30 for catastrophic impairment assessments, recommended by OMEGA Medical in a treatment plan (OCF-18) submitted on August 4, 2020, and denied on August 13, 2020?
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
Is the applicant entitled to interest on any overdue payment of benefits?
4The issues to be decided in the hearing related to the October 8, 2016 accident are:
Is the applicant entitled to $14,577.00 for catastrophic impairment assessments, recommended by Rockman Psychology PC in a treatment plan (OCF-18) submitted on November 16, 2020, and denied on December 8, 2020?
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is not entitled to the catastrophic impairment assessment in the amount of $16,283.30.
6The applicant is not entitled to the catastrophic impairment assessment in the amount of $$14,577.00.
7The applicant is not entitled to interest.
8The applicant is not entitled to an award.
LAW
9Section 25(1)5 of the Schedule provides that an insurer shall pay reasonable fees incurred by or on behalf of an insured charged for preparing an application under s. 45 for a determination of whether the insured has sustained a catastrophic impairment, including any assessment necessary for that purpose. Section 45(1) provides that an insured who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
10Section 25(5)(a) provides that the insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and the preparation of the related report.
11Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plans he or she seeks are reasonable and necessary.
TEST FOR CAUSATION
12The leading case on causation is set out in the Divisional Court’s decision in Sabadash v. State Farm (“Sabadash”).2 This decision establishes that the test for determining causation in accident benefits cases is the “but for” test. The applicant must prove that “but for” the accident, she would not suffer the impairments which cause the complaints she puts forward as the basis for her claim. Sabadash supports that an accident need not be the sole cause but rather a “necessary cause” of an individual’s impairment.
ANALYSIS
Are the two disputed costs of examinations reasonable and necessary?
13The applicant submitted that “The assessments proposed by OMEGA Medical meet both the reasonableness and guideline requirements for entitlement on a balance of probabilities for funding, prima facie.” The applicant stated that “the extensive medical brief coupled with Dr. Fulton’s extensive Neuropsychological Evaluation supports the Applicant’s position on causation, diagnosis, prognosis, and functional impairment.” The applicant relies on Dr. Fulton’s report and chapter 4 (The Nervous System) from Guides to the Evaluation of Permanent Impairment.
14The respondent submitted that the applicant has failed to show that the proposed CAT assessments are reasonable and necessary as a direct result of the 2014 MVA and 2016 MVA respectively.
15I am not persuaded that the costs of examination are reasonable and necessary.
Neuropsychological report from Dr. W.A. Fulton dated March 11, 2020.
16In support of her case, the applicant is relying on a neuropsychological evaluation conducted by Dr. Fulton, psychologist. Dr. Fulton reviewed her medical reports, interviewed her, and conducted a variety of testing.
17Dr. Fulton opined that “present test results index a globally “moderate” degree of cognitive impairment with the applicant within the context of a more severe chronic pain and psychological adjustment disorders.” Dr. Fulton diagnosed the applicant with Cognitive, Somatoform and Adjustment Disorders related to injuries sustained in the accidents. He was of the view that the applicant is considered wholly and permanently disabled from the neuropsychological perspective. He stated that:
Ms. Williams is suffering from cognitive, chronic pain, and psychological maladjustment disorders as identified above. These specific diagnoses are considered trauma-related and certainly the accidents of 2014 and 2016 were not benign events in her clinical history. Ms. Williams was, at least on an intermittent basis, capable of carrying out work-related tasks up until the time of her 2014 accident, particularly during times when her symptoms were well controlled. Subsequent to that event, there is no indication of any self-sustained improvement in Ms. Williams’ functional status. Efforts to return to work were never successful and present test results objectively confirm a degree of impairment which would preclude employment resumption.
18Other than this report, the applicant did not provide any medical evidence in support of her case. Nor did she direct the Tribunal to specific references that demonstrate that the treatment plans are reasonable and necessary. I have relied on the medical evidence that was produced by the respondent. Upon reviewing the medical evidence, I am not persuaded by Dr. Fulton’s opinion for the reasons outlined below.
Inconsistencies in Dr. Fulton’s report
19Dr. Fulton is of the view that if it was not for the injuries sustained in the 2014 and 2016 accidents, the applicant would have been able to continue to carry out work-related tasks, engage in normal social and family relationships, and participate in recreational activities as she did on an intermittent basis prior to the event. He stated that:
Accordingly, the accident of June 29, 2014 was clearly not a benign event as there is really no indication of any identified cognitive concerns prior to that, which these only emerging and become problematic secondary to trauma. It is, thus, reasonable to conclude that if not for the injuries sustained in the 2014 and 2016 accident, Ms. Williams would have been able to continue to carry out work-related tasks, engage in normal social and family relationships, and participate in recreational activities as she did on an intermittent basis prior to that event.
20I find his conclusion to be unsupported by the medical evidence. The applicant has a history of depression, anxiety and cognitive issues prior to the 2014 and 2016 accidents. For example, in a note dated May 16, 2011 from Dr. J. Anne Pollett, Pain Specialist, mentions that the applicant has a history of anxiety. It states that “cognitively, she feels more forgetful and has difficulty concentrating. She suffers from anxiety attacks and has a history of depression.”
21On April 13, 2012, the applicant reported to Dr. Jagtaran Singh Dhaliwal, psychiatrist, that she had “…Decreased sleep, decreased focusing, decreased concentration. Also rear-ended on March 26, 2012.” It is unclear to me as to how he came to the conclusion that the applicant did not have any identified cognitive concerns prior to the 2014 accident in light of the documents that he reviewed.
22The applicant has been involved in at least seven car accidents: November 27, 2011, March 26, 2012, June 29, 2014, October 8, 2016, September 6, 2017, February 14, 2018 and October 8, 2019. In addition to these accidents, there is also a history of the applicant falling on multiple occasions. Dr. Fulton’s report does not address the other accidents and falls, which I find to be quite concerning especially considering that there are references in the medical evidence that he reviewed. It raises the question how Dr. Fulton came to a definitive conclusion that the 2014 and 2016 accidents caused the applicant’s cognitive issues. Dr. Fulton refers to the other accidents as ‘minor’ without any justification. I place less weight on this report as it does not specify or discuss any causation issues with respect to the impairments stemming from the other accidents and slip and falls.
The CNRs from Dr. Frederick Forbes and Dr. Ihsan Warraich
23I find that the clinical notes and records (“CNRs”) of family physicians, Dr. Frederick Forbes and Dr. Ihsan Warraich’s do not support Dr. Fulton’s conclusion.
CNRs from Dr. Forbes
24On July 4, 2014, the applicant met with Dr. Forbes regarding issues stemming from the June 29, 2014 accident. No mention is made of any cognitive issues. She met with him on July 28, 2014, August 5, 2014, October 20, 2014, and November 10, 2014. At these appointments, there is no mention made in the CNRs regarding any cognitive concerns stemming from the subject accident. Dr. Forbes noted issues regarding her soft tissue injuries and ongoing neck, upper and lower back pain.
25On December 15, 2014, she met with Dr. Forbes regarding a motor vehicle accident that occurred on December 11, 2014. He diagnosed her with cervical spine sprain and strain. Anxiety and depression are noted in the CNRs dated December 23, 2014. However, it appears that the anxiety and depression stems from an unfortunate childhood experience. The June 2014 accident is not mentioned in this note.
26Starting in 2015, she saw Dr. Forbes on January 12, 2015, February 26, 2015, March 3, 2015, March 6, 2015, March 23, 2015, April 2, 2015, April 8, 2015, May 22, 2015, June 3, 2015, June 24, 2015, July 20, 2015, December 2, 2015, December 16, 2015, January 22, 2016, February 29, 2016, and April 5, 2016. There are complaints regarding depression, anxiety, and PTSD. Of interest is the note dated June 3, 2015. It appears that the applicant was rear-ended in 2015. The lack of concentration is mentioned. However, there is nothing in the notes that ties the lack of concentration to the 2014 accident. The Tribunal was not provided with CNRs from Dr. Forbes after April 5, 2016 and onwards. Based on my review of Dr. Forbes’ CNRs, there is no evidence that the applicant’s cognitive issues stem from the 2014 subject accident.
CNRs from Dr. Warraich
27The applicant also saw Dr. Warraich a few days after the 2014 accident. On July 14, 2014, Dr. Warraich notes “backache post MVA”. She met with Dr. Warraich on August 13, 2014, September 11, 2014, September 18, 2014, September 23, 2014, September 24, 2014, October 11, 2014, November 3, 2013, November 24, 2014, December 9, 2014, December 12, 2014, and December 13, 2014. No cognitive concerns are noted at these visits. The CNRs from the December 13, 2014 appointment mention that she had a car accident and a slip and fall. She was given Cipralex. Based on my review of the Dr. Warraich’s CNRs, there is nothing to suggest that the applicant sustained cognitive issues from the 2014 accident.
2016 accident
28There is a gap in the CNRs from Dr. Warraich from 2015 to 2017. The applicant went back to the clinic on December 15, 2018 regarding a soft tissue injury from an elevator accident. On December 18, 2018, she reported that she had insomnia and chronic lower back pain. It was noted that she was alert, oriented, her thought process was intact, and mood was congruent. She was seen again on December 21, 2018, and was diagnosed with strain left shoulder, arm and wrist. It was noted that she was not in distress.
29At the April 15, 2019 appointment, the applicant reported that she has “increasing difficulty with word finding, fogginess, unable to multi-task, social withdrawal, goes into panic attacks, affects social life, family life.” On examination, it was found that there was clear cognition and no sensor motor deficit. This finding is quite inconsistent with what the applicant reported. On May 15, 2019, she met with Dr. Warraich regarding a headache and prescription refill. No complaints were made in relation to any cognitive issues.
30The lack of cognitive concerns in the CNRs of Dr. Forbes and Dr. Warraich raises the question how Dr. Fulton came to the conclusion that the applicant had cognitive issues that emerged after the accidents. If the 2014 and 2016 accidents contributed to the applicant developing cognitive issues, then one would expect that it would be documented. Moreover, it would be expected that the applicant would have sought help from her family physicians. It is unclear why there is a gap in her visits with Dr. Warraich from 2015 to 2017 and with Dr. Forbes after April 5, 2016. I find that the CNRs of Dr. Forbes and Dr. Warraich do not lend support to Dr. Fulton’s opinion.
CNRs from Dr. Jagtaran Singh Dhaliwal
31The applicant was also seeing Dr. Dhaliwal for anxiety and depression. The CNRs of Dr. Dhaliwal note that the applicant had a history of anxiety and depression. In the CNRs dated September 14, 2012, it is noted that the applicant has had depression ten years or more. Prior to the subject accident, the applicant was unable to work. She was also involved in a car accident. For example, Dr. Dhaliwal noted on February 28, 2014 that “she had an accident. Feeling depressed. Decreased sleeping. Not well. Pain, a lot Chronic pain, lower back. Pain in car accident. Energy decreased, anxiety, not much. Assessment: Ongoing depression.”
32On July 24, 2014, the applicant saw Dr. Dhaliwal regarding the June 29, 2014 accident. He diagnosed her with insomnia, post-traumatic stress disorder and pain. She saw Dr. Dhaliwal on November 17, 2014, and he diagnosed her with insomnia, anxiety and post-traumatic stress disorder. Cognitive concerns were not raised at these appointments.
33There was a gap in the visits. She didn’t see Dr. Dhaliwal until March 25, 2015. He noted “Depression, mood changes with increased insomnia. No mania. Not psychotic. Depression is not recovered. Stress and anxiety is still there.” No mention is made regarding any cognitive issues.
34She met him on March 31, 2015. He noted that she reported “posttraumatic stress disorder. Getting suicidal thoughts. Sleep poor. Anxiety level high. Energy low. Mood is sad. Concentration is decreased. Coping poor. Continues to have low focusing. Socialization is poor. Feels sad always. She had a car accident and developed PTSD.” This is the first reference in his notes regarding her concentration after the June 2014 accident.
35On May 26, 2015, she reported that she was having “high anxiety”. She discussed her childhood trauma with Dr. Dhaliwal. She informed Dr. Dhaliwal she had decreased concentration and difficulties with her ability to think. He diagnosed her with fluctuating depression. However, Dr. Dhaliwal does not make any finding that her impairments were from the 2014 accident.
36She met with Dr. Dhaliwal on September 30, 2015. He noted that:
The patient continues to have depression, anxiety, crying spells. Some day low and sad. Cannot comprehend and cannot concentrate. Hence not ready for rehabilitation. She talked about people accusing in the past. There is a program for this called 12 Steps ASD/NON. Still having flashbacks. Fear of accident, reminders, intrusive memory of accident come.
37On November 23, 2015, he noted that “Clinically, she has not recovered. PTSD, major depressive disorder is still there. Pain. She is disabled. On September 30, 2015, Dr. Dhaliwal noted that that applicant could not comprehend or concentrate. He didn’t feel that she was ready for rehabilitation. On November 23, 2015, Dr. Dhaliwal noted that she has not recovered and that she is disabled.
38She met with Dr. Dhaliwal the following year on February 11, 2016. The CNRs dated February 11, 2016 noted the following:
The patient has no energy. Cannot get out of bed. Feels very sad. Wants to go back on Wellbutrin. Also decreased Seroquel to 200h.s. Xanax is needed for anxiety and decreased Trazodone to 50 mg hs because of having vomits. Not ready to return to work due to depression. Stress of insurance company causes more stress for her. This is what the patient told me. She is not ready for rehabilitation, had four accidents before the last accident. Concentration was good before the accident, not depressed before the accident. No anxiety before the accident. Complains of flashbacks, suicidal thoughts. Thinks about her son. Does not want to die. So, she is not suicidal.
39The information that the applicant reported to Dr. Dhaliwal is quite inconsistent. According to this note, her concentration was good before the accident. She was not depressed or anxious before the accident. However, the medical evidence suggests otherwise. It is documented throughout the medical evidence that she had depression and anxiety prior to the subject accidents. She also reported having issues with concentration prior to the subject accidents.
40The applicant met with Dr. Dhaliwal on March 16, 2016, April 25, 2016, and June 22, 2016. She did not make any complaints related to cognitive impairments. However, on July 18 ,2016, she told Dr. Dhaliwal that “She is not able to do any cognition or cognitive skills at home. Functional capacity is increased. Pain is decreased. History of car accident two years ago. She has been declining in functioning. Not sharp anymore in thinking. Cannot read more than one paragraph. Cannot go to mall. Cooking or cleaning and it is not any manipulation or anything.” Dr. Dhaliwal prescribed her Abilify 2mg. She met Dr. Dhaliwal on July 18, 2016 and September 26, 2016. No complaints related to her cognition were made at these appointments.
MVA dated October 8, 2016
41The applicant was involved in another accident on October 8, 2016. Approximately two months after the October 8, 2016 accident, the applicant met with Dr. Dhaliwal. He diagnosed her with depression, post-traumatic stress disorder and pain. Approximately four months later, she met with Dr. Dhaliwal on April 12, 2017. At this appointment, she reported that she was having difficulty focusing and concentrating. She told Dr. Dhaliwal that she may have ADHD. She had difficulties with concentration when she was in school. He noted that the present accidents have decreased her concentration and focusing.
42He stated, “Depression and ADHD are now diagnosed with history given by the patient.” He further stated that “In summary, there is a new finding here that the patient has history of ADHD which has decreased her concentration and focusing. The accident has decreased her concentration and focusing and relapse of depression does not help focusing and concentration. All these factors combined to given her decreased focusing and concentration.”
43On May 16, 2017, she met with Dr. Dhaliwal and told him that “Actually Adderall is giving her more focus, energy is better.” He also noted that she wasn’t having any mood swings, psychotic symptoms or mania. However, he suggested that “still stay off work with depression because I am trying to adjust her focusing and concentration to a better level. “
44On July 5, 2017, Dr. Dhaliwal noted that “…It clearly shows she is going through depression, anxiety, panicky feeling, decreased concentration and focusing which has worsened by the accident. Whenever she has depression, symptoms get worse. PTSD has not helped. PTSD diagnosis and symptoms do not help anybody who is depressed and they make it worse. It is a common finding, a common sense thing.” I find Dr. Dhaliwal’s opinion to be contradictory. In the same note, he stated “Depression is recovered.” Moreover, the Adderall helped to improve her concentration and focus.
45On August 8, 2017, the applicant told Dr. Dhaliwal that she had to go back to work. She reported that she was having anxiety, depression, and issues with concentration. He stated that “A summary of this so far is by myself when I have read all [of] her progress notes to simply dictate and type for you that she is struggling. She is not malingering. She does not have [a] factitious disorder. She is trying her best to work, go back to work, she finds it hard to handle and cope. This is the best she can describe her situation. One has to understand the situation. The lady had sexual trauma in the past, had many accidents causing PTSD, and has relapsing depression. Everything complicates. There is nothing that points out that she is malingering, or she is fictitious.”
46I do not find Dr. Dhaliwal’s opinion to be persuasive. It appears that he is advocating for his patient. Dr. Dhaliwal relied on her self-reporting and did not conduct any testing to verify her complaints. He did not conduct any testing to confirm whether or not she was malingering. There is no objective evidence to support his conclusions. He did not review other medical evidence. Nor did he refer her to a specialist to further explore her complaints. Furthermore, there are inconsistencies in his CNRs, which do not make any sense.
47Moreover, Dr. Dhaliwal concluded that her impairments were stemming from the accidents. However, he didn’t even consider the impact of the other accidents and slip and falls. Furthermore, the applicant told Dr. Dhaliwal about her cognitive issues prior to the subject accidents. He did not address that. For these reasons, I am assigning less weight to Dr. Dhaliwal’s opinion. I am not persuaded that the subject accidents caused her impairments.
48The onus is on the applicant to prove that the treatment plans are reasonable and necessary. Aside from the report from Dr. Fulton, the applicant did not provide any evidence that supports her case. She did not submit any CNRs from her family physician or other doctors/specialists that she may have seen. Nor did she submit any cogent evidence that refutes the respondent’s position.
49In absence of evidence in her support of her case, I find that the applicant is not entitled to the treatment plans.
Award
50The applicant is seeking an award from the respondent. The applicant stated that “The practical issue is that the claim was poorly adjusted through its inception, and absent requests for updated medical information, reconsiderations of previously outdated conclusions as to the Applicant’s level and degree of impairment [lack thereof], and the cumulative delay in adjusting the claim to allow the timely advancement of catastrophic impairment testing has caused a global delay to the claim in its entirety.” The applicant is of the view that the respondent is absolutely required to pay for the assessments submitted for the first accident. The applicant alleges that the insurer engaged in high handed, disreputable, and intentionally abusive tactics intended to intimidate and frustrate the applicant.
51The respondent submitted that entitlement to a CAT assessment is never absolute, and in this case, it is reasonable for the respondent to require the additional documents requested to determine the reasonableness of the request. It was submitted that “The respondent acted promptly, unlike the applicant did nothing for more than 6 years and refused to provide the requested documents despite being ordered to do so. The respondent submits that its conduct does not meet the standard for a special award.”
52It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. 3
53In my view, the applicant has not provided any evidence that proves that the respondent unreasonably withheld or delayed payments to her. Submissions are not evidence. The applicant must direct the Tribunal to the evidence. The applicant has failed to do so. As such, I find that that the applicant is not entitled to an award.
CONCLUSION
54The applicant is not entitled to the catastrophic impairment assessment in the amount of $16,283.30.
55The applicant is not entitled to the catastrophic impairment assessment in the amount of $14,577.00.
56The applicant is not entitled to interest.
57The applicant is not entitled to an award.
58The application is dismissed.
Released: September 19, 2022
Tavlin Kaur
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule, O Reg 34/10
- Sabadash v. State Farm et al. 2019 ONSC 1121, 2019 ONSC 1121
- 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) at para. 28 and S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration) at para. 39 (“S.M. v Unica”).