Guttman v. Intact Insurance Company, 2022 CanLII 87743

Citation: Guttman v. Intact Insurance Company, 2022 ONLAT 20-011345/AABS

Licence Appeal Tribunal File Number: 20-011345/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:

Beverley Guttman

Applicant

and

Intact Insurance Company

Respondent

DECISION [AND ORDER]

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Applicant: Ian D. Kirby, Counsel

For the Respondent: Nickola Haddad, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was injured in an accident on November 11, 2019 (the “MVA”), and sought various benefits from the respondent, Intact Insurance Company “Intact”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 ¹ (''Schedule''). The 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

2The following issues are in dispute:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
2. Is the applicant entitled to $4,200.00 for psychotherapy treatment proposed by Sally Doulis in a treatment plan which was denied on September 1, 2020?
3. Is the applicant entitled to interest on any overdue payment of benefits?
4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant’s injuries warrant removal from the Minor Injury Guideline (“MIG”).

4The applicant is not entitled to a payment in the amount of $4,200.00 for psychotherapy treatment.

5The applicant is not entitled to interest nor an award.

PRELIMINARY ISSUES

Objections to the Medial Evidence

6The respondent objects to the above medical evidence of Dr. Elaine F. Borins, psychiatrist, (“Dr. Borins”) and Dr. Myrna Lichter, ophthalmologist (“Dr. Lichter”) as well as that of Ms. Sally Doulis, Social Worker Psychotherapist. (“Ms. Doulis”). The respondent submits that the applicant failed to produce requested pre-accident and post-accident medical documentation, thus limiting the respondent’s ability to “verify the accuracy of the letters submitted on behalf of the Applicant by her social worker or psychiatrist” in order to assess causation; and

7The respondent also argues that the reports from Dr. Borins and Ms. Doulis were not accompanied by the requisite qualifications of the experts and Acknowledgement of Expert’s Duty Forms.

Non-Production of Medical Documentation

8The respondent submits that the applicant has not complied with their requests for medical documentation as per section 33 of the Schedule.

9Section 33 of the Schedule provides that a person applying for a benefit shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the person’s entitlement to a benefit.

10The respondent argued that on February 24, 2020, it requested ² the records of the applicant’s family doctor, psychologist, ophthalmologist and a list of medication from her pharmacy. The respondent submits that due to the failure to produce the requested medical documentation they are not liable to pay a benefit during which the applicant failed to produce them, as per section 33 Schedule.

11The evidence demonstrates that the applicant requested the clinical notes and records of the applicant’s family doctor, Dr. Natalie Morson on September 3, 2020 ³. The applicant received these and attached them to her reply submissions.

12I also noted that it is unclear as to whether these were provided to the Respondent beforehand. The same is true of the clinical notes and records of ophthalmologist, Dr. Lichter.

13The applicant submits that she provided the respondent with executed OCF-5⁴ (“Permission to Disclose Health Information”) with which the respondent requested the clinical notes and records of Ms. Doulis on March 2, 2020. In her letter⁵ of March 5, 2020, Ms. Doulis advised that she had not seen the applicant from 2017 to 2019.

14With respect to the clinical notes and records of Dr. Borins, it is unclear from the evidence as to whether the applicant requested, received and produced them. However, the evidence indicates that Dr. Borins did produce reports to the respondent.

15Regarding the pharmacy prescription records, the evidence indicates that the respondent did receive these.

16I conclude that the respondent was provided with some of the requested clinical notes and records of the family doctor as well as medical reports from Dr. Borins and Sally Doulis.

17The evidence also shows that at least one executed OCF-5 was provided to the respondent.

18I am not persuaded that the applicant should be precluded to any benefits as per section 33 of the Schedule. Furthermore, I do not find the alleged non-production of medical records to be an accurate or persuasive reason for the respondent’s failure to consider whether the applicant should be removed from the MIG, nor a sufficient reason for the respondent not to require the applicant to attend any examinations pursuant to s. 44 of the Schedule.

Expert Reports

19The respondent also objects to the reports of Dr. Borins and Ms. Doulis being accepted into evidence, as they were not accompanied by Acknowledgement of Expert’s Duty Forms or the qualifications of the expert.

20The respondent relies on the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (effective October 2, 2017) as amended (“Rules”).

21Rule 10.2 outlines the information that must accompany the evidence of an expert witness, including the required Tribunal form as well as the qualifications of the expert.

22I note, however, that, although the reports of Dr. Borins nor of Ms. Doulis were submitted as evidence, none of the reports were originally prepared for the purpose of litigation, but rather to advise applicant’s counsel and the respondent with respect to the applicant’s status and requirement of benefits.

23As such, I view these reports as those in the normal exchange of documentation as between an insured person and her insurer. Therefore, I find that these reports are not subject to the requirements of Rule 10.

SUBSTANTIVE ISSUES ANALYSIS

Removal from the Minor Injury Guideline (“MIG”)

24The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

25To request treatment above the $3,500.00 funding limit, the applicant must prove, on the balance of probabilities, that her injuries do not fall within the definition of minor injury in section 3 of the Schedule. The applicant may establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

26An applicant may be removed from 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 section 3(1).

Parties’ Positions

27The applicant took the position that her injuries require removal from the MIG on the basis of pre-existing injuries and psychological impairment as a result of the accident.

28The respondent submitted that the applicant’s injuries are predominantly minor in nature and do not require removal from the MIG. It further argues that the applicant withheld relevant contemporaneous medical records.

Psychological Impairment

29Based on the medical evidence of the applicant’s treating practitioners, I am persuaded that the applicant has sustained a psychological impairment as a result of the accident.

30The applicant relied on a letter⁶ from the applicant’s treating psychiatrist to the respondent, dated January 28, 2020. In that letter Dr. Borins stated that the applicant suffered significant trauma from the accident and recommended deep massage on a continuing basis, continued psychotherapy as well as trials of physiotherapy. While it can be argued that Dr. Borins did not specifically diagnose the applicant in this letter, she does state, “while the diagnosis of post-traumatic stress disorder is established by the DSM-5, there is no established medical drug treatment for post-traumatic stress disorder.”

31The applicant also relied on a subsequent report⁷ by Dr. Borins, dated August 21, 2020, in which she stated that the applicant is suffering from post-concussion and post-traumatic stress disorder with significant anxiety and depression. Dr. Borins further stated that the applicant has very significant emotional and psychiatric issues as a result of the accident. She advised that the applicant’s cognitive changes specifically involve concentration and memory. Dr. Borins commented that the applicant’s significant emotional and psychiatric issues were the result of the accident.

32The applicant also relied on a letter to the respondent dated March 5, 2020 ⁸, in which Sally Doulis, psychotherapist, advised that the applicant was extremely anxious and confused.

33The applicant further relied on a letter⁹from Ms. Doulis to the applicant’s counsel dated November 2, 2020, Ms. Doulis reiterated that the applicant continued to be confused, with difficulties focusing and remembering.

34The applicant also relied on a letter from the applicant’s ophthalmologist to applicant’s counsel¹⁰,which was undated. In that letter, Dr. Lichter stated, “I have known [the applicant] since 2002, and had been treating her for her dry eye, and blepharitis. There was a profound change in her symptoms and personality following her MVA November 20, 2019.she did experience changes in her vision as well.”

35It should be noted that the respondent produced no original medical documentation and did not request that the applicant attend any examinations pursuant to s. 44 of the Schedule. Rather, the respondent relied on two positions with respect to the not ordering of s. 44 assessments.

36First, the respondent relies on the applicant’s non-production of medical documentation. This issue was dealt with earlier in my decision.

37Secondly, the respondent argues that, as the applicant did not claim psychotherapy expenses by way of an OCF-18, but by way of an OCF-6, they had no reason to require an examination under s. 44 of the Schedule, as they denied the submitted benefit on the basis of s. 38(2) of the Schedule rather an s. 44.

38I find the reports of Dr. Borins particularly persuasive. The respondent’s position is that Dr. Borins’ opinion that the applicant sustained physical and neurological injuries are outside of her scope of expertise as a psychiatrist. However, I accept that one of Dr. Borins’ field of psychiatric expertise is that of the effects of trauma on the brain and its subsequent impairments.

39As previously stated, Dr. Borins diagnosed the applicant with significant trauma from the accident and sustained a post-traumatic stress disorder with significant anxiety and depression. Among other observations, Dr. Borins stated that the injuries to the applicant have affected her vision and balance.

40As noted earlier, the respondent did not seek to have the applicant assessed with respect to her eligibility to be treated within the MIG limits.

41Based on the medical evidence, particularly that of Dr. Borins, and in the absence of any contradicting medical evidence, I find that the applicant has sustained a psychological impairment as a result of the accident, specifically that of post-concussion and post-traumatic stress disorder.

42Given the psychological impairment, I am satisfied her injuries cannot be treated within the limits of the MIG and find that the applicant is not subject to the financial limits of such.

$4,200.00 FOR PSYCHOTHERAPY TREATMENT

43I find that the applicant is not entitled to $4,200.00 for psychotherapy treatment. The parties did not dispute that the disputed treatment plan is reasonable and necessary. Instead, they focused their submissions on section 38 of the Schedule.

44The respondent argued that it received an Expenses Claims Form (“OCF-6”) dated August 13, 2020 from Ms. Doulis in the amount of $4,200.00 for social work psychotherapy services rendered from November 2019 to July 2020.

45The respondent argues that the amount of $4,200.00 is not payable as it was not submitted by way of a Treatment Plan (“OCF-18”) and was not approved prior to the incurring of the expense.

46The respondent cites section 38(2) of the Schedule, which states that it is not liable to pay for an expense for a medical benefit that was incurred before the applicant submits an OCF-18 that satisfies section 38(3) of the Schedule, unless said OCF-18 is subject to an exception as enumerated by section 38(2)(a-d) of the Schedule.

47The applicant argues that the same information that is contained in the OCF-18 was available in the report of Ms. Doulis of March 5, 2020. The applicant further argued that if the respondent wanted the expenses submitted by way of an OCF-18, they should have advised the applicant of the same, but did not. The applicant submits that the insurer should therefore pay the benefit.

48I disagree with the applicant’s argument. After reviewing the evidence and submissions of the parties, I find that an OCF-18 for the psychotherapy was never submitted and the psychotherapy treatment was incurred before the applicant submitted a treatment plan.as is required by 38(2) of the Schedule. I also find that none of the four exceptions outlined in section 38(2)(a-d) of the Schedule apply in this situation.

49I find, therefore, that the applicant is not entitled to $4,200.00 for the psychotherapy treatment.

INTEREST AND AWARD

50As I find that there are no outstanding benefits in dispute, neither an award nor interest shall be awarded.

CONCLUSION AND ORDER

51The applicant’s accident-related injuries warrant removal from the MIG.

52The applicant is not entitled to a $4,200.00 for psychotherapy treatment.

53The applicant is not entitled to interest.

54The applicant is not entitled to an award.

Footnotes

1. 1Ontario Regulation 34/10 as amended.
2. 2Letter from the Respondent to the Applicant dated February 24, 2020.
3. 3Letter from the Applicant to Dr. Natalie Morson dated September 3, 2020.
4. 4Permission to Disclose Information (OCF-5) dated February 4, 2020.
5. 5Letter from Sally Doulis to the Respondent dated March 5, 2020.
6. 6Report of Dr. Borins dated January 28, 2020.
7. 7Report of Dr. Borins dated August 21, 2020.
8. 8Report of Ms. Doulis dated March 5, 2020
9. 9Letter from Ms. Doulis to applicant counsel dated November 2, 2020
10. 10Letter from Dr. Myrna Lichter to applicant counsel, undated.