Citation: Moscoso v. Intact Insurance Company, 2023 ONLAT 22-003906/AABS
Licence Appeal Tribunal File Number: 22-003906/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:
Michael Moscoso
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
VICE-CHAIR: Jeremy A. Roberts
APPEARANCES:
For the Applicant:
Michael Moscoso, Applicant Antonio Afecto, Counsel
For the Respondent:
Kiet Truong, Representative
Ken Yip, Counsel
Court Reporter:
Jason Nebelung
HEARD: by Videoconference:
September 5 to 8, 2023
OVERVIEW
1Michael Moscoso, the applicant, was involved in an automobile accident on October 7, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule under criterion 7?
ii. Is the applicant entitled to the assessments proposed by Downsview Healthcare Inc., as follows:
a. $627.92 for a psychological assessment, in a treatment plan/OCF-18 (“plan”) dated October 8, 2020;
b. $1,820.50 for a medical assessment (Form-1), in a treatment plan dated October 8, 2020; and
c. $2,000.00 ($14,780.00 less $12,780.00 approved) for a catastrophic (“CAT”) assessment, in a treatment plan dated September 8, 2020?
iii. Is the applicant entitled to $2,659.75 for a physiotherapy assessment, proposed by Orangeville Physiomed, in a treatment plan dated January 28, 2021?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not deemed catastrophically impaired.
4The applicant is not entitled to the assessment plans, an award, or interest.
ANALYSIS
Background
5The primary issue in dispute in this hearing is whether or not the applicant is catastrophically impaired (CAT) under criterion 7 of the Schedule. Both parties agree that of the four assessment plans in dispute, issues ii(a), ii(b), and iii were denied as a result of the applicant exhausting the non-CAT funding limit. Therefore, these treatment plans would be approved if the applicant was found to be CAT. Issue ii(c), the CAT assessment, was partially approved and therefore must be considered on its merits.
6In order to be found to have a catastrophic impairment under the Schedule under criterion 7, the applicant must prove on a balance of probabilities that the impairments they suffer as a result of the accident have a combined physical and mental/behavioural rating that results in a whole person impairment (“WPI”) rating of 55% or more. Physical impairments are rated using the American Medical Association (AMA) Guides (the “Guides”) 4th Edition. Mental/behavioural impairments are rated using the Guides 6th Edition. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one as determined by the case Liu v. 1226071 Ontario Inc., 2009 ONCA 571.
7The Guides are a compilation of chapters that contain specific rating criteria for the degree of impairment to a particular body system. To arrive at a total WPI rating under the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides. Once the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating. The combination relies on a formula rather than a straight addition method. Importantly, the Guides are concerned with impairments, not specific diagnoses.
8The onus is on the applicant to prove their case on a balance of probabilities.
9The applicant was assessed by a team of s. 25 assessors and s. 44 assessors. While there was some agreement between the assessors, the differences are summarized here:
Respondent
WPI (%)
Applicant
WPI (%)
Chapter 3 – MSK System
Dr. Sekyi- Otu
Dr. Getahun
Neck pain
0
0
Thoracic spine pain
0
0
Lumbosacral spine pain
0
0
Upper extremity impairment
0
0
Lower extremity impairment
Right tibial non-union (right tibial malalignment by analogy)
0
8
Right leg unilateral atrophy
5
0
Right Infrapatellar branch of saphenous nerve (superficial peroneal nerve by analogy)
2
0
Right knee crepitus
0
2
Left cruciate and vs. or collateral ligament laxity
10
15
Left tibial plateau fracture
2
2
Left lateral meniscus tear (meniscectomy by analogy)
1
1
Left knee crepitus
0
2
Scarring
0
5
Medication
1
3
Subtotal
21
34
Chapter 4 – Nervous System
Dr. Mustafa
Dr. Basile
Disturbance of Mental Status
14
15*
Headaches
0
2
Lumbosacral radiculopathy
0
5
Peroneal neuropathy at fibular head
0
3
Subtotal
14
23
Chapter 14 – Mental and Behavioral Disorders
Dr. Longhorn-Geddes
Dr. Shaul
GAF
71-80 = 0% WPI
50 = 15% WPI
BPRS (summed score)
30 = 0% WPI
46 = 20% WPI
PIRS (summed score)
2 = 0% WPI
6 = 20% WPI
Median
0% WPI
20% WPI
Total - Criterion 7
32 (21 + 14 + 0)
59 (34 + 23 + 20)
*Of note: the parties agreed that Dr. Basile, the s. 25 psychologist, made an error in providing a 15% WPI rating under a table entitled “Disturbances of Consciousness and Awareness”. Both parties agreed that it seemed clear that Dr. Basile meant to provide that 15% rating under a table entitled “Disturbance of Mental Status”. While the respondent asked that I consider Dr. Basile’s error when assigning weight, both parties agreed that I should consider the 15% WPI under the corrected table, which is reflected above.
10The most significant disagreement between the s. 25 and s. 44 assessors are the competing ratings provided by the respective psychologists, Dr. Shaul (for the applicant) and Dr. Longhorn-Geddes (for the respondent). While Dr. Shaul provided a 20% WPI rating under chapter 14 of the Guides 6th Edition, entitled “Mental and Behavioural Disorders”, Dr. Longhorn-Geddes provided a 0%. Without a rating under this chapter the applicant does not meet the threshold to be deemed catastrophically impaired under criterion 7.
11Per the table above at paragraph 6, both psychologists provided three ratings, which, combined with their assessment of the applicant, led to their assignment of a WPI rating. The three ratings were the Global Assessment of Functioning (GAF), the Brief Psychiatric Rating Scale (BPRS), and the Psychiatric Impairment Rating Scale (PIRS).
The applicant is not catastrophically impaired under criterion 7
12I do not find the applicant to be catastrophically impaired under criterion 7. I do not accept a 20% rating from Dr. Shaul under chapter 14 of the Guides 6th Edition. Without this 20%, the applicant does not achieve the 55% threshold required for a catastrophic impairment designation.
13The applicant argued that I should accept the WPI rating provided by Dr. Shaul for the following three reasons. First, by the applicant’s own testimony, he continues to experience emotional trauma as a result of the accident, in particular feelings of guilt and depression at the limitations he now faces. Second, unlike Dr. Longhorn-Geddes, Dr. Shaul considered how the applicant’s physical pain may manifest itself emotionally, as evidenced by giving the applicant a diagnosis of features of somatic symptom disorder. Third, Dr. Longhorn-Geddes failed to adequately consider the clinical significance of two psychometric tests she conducted in the course of her assessment (the Pain Catastrophizing Scale and the Tampa Scale for Kinseiophobia tests), which may have led her to change her ratings. The applicant supported his argument with reference to his own testimony, where he became emotional when discussing his inability to engage physically, such as playing sports with his godson. He also pointed to Islamovic v. Co-operators General Insurance Company, 2023 ONLAT 21-006080/AABS, in which the Tribunal found that it is preferrable to consider an individual’s pain when determining an individual’s mental or behavioural impairments.
14The respondent argues that Dr. Longhorn-Geddes’ rating should be accepted for the reasons that follow. First, Dr. Shaul’s GAF score of 50 would, per the Guides 6th Edition, mean an individual suffering “serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or social functioning (e.g. no friends, unable to keep a job)”, which does not match the applicant’s current presentation. Second, unlike Dr. Longhorn-Geddes, Dr. Shaul did not provide the breakdown scores for his BPRS or PIRS, thereby rendering his rationale for these scores unknown. Its arguments were supported by the testimony of Dr. Longhorn-Geddes, who provided a thorough rationale for the rating scores provided and how those scores mirrored the applicant’s presentation.
15In considering the submissions of the parties, I agree with the respondent and find that the scores provided by Dr. Longhorn-Geddes are more accurate than those provided by Dr. Shaul. While I acknowledge the applicant’s testimony regarding his ongoing emotional trauma, I find that the ratings of Dr. Longhorn-Geddes for GAF and BPRS mirror the applicant’s testimony before the Tribunal:
i. When considering the GAF score, I find that Dr. Longhorn-Geddes’ rating more accurately represents the applicant’s level of functioning. Dr. Longhorn-Geddes assigned a 71-80 rating, which reflects mild, transient symptoms of functioning. The applicant testified that he has returned to work, has plans to return to school, and is able to socialize with others despite limitations. None of this would lead me to believe that the applicant merits a GAF score of 50 as assigned by Dr. Shaul, which per the Guides 6th Edition would mean a “serious impairment” with an individual “suffering from suicidal ideation”, “severe obsessional rituals”, “no friends” and “unable to keep a job”. Instead, they more closely align with the 71-80 score provided by Dr. Longhorn-Geddes, which the Guides 6th Edition describes as “transient and expectable reactions to psychosocial stressors” and “slight impairment in social, occupational, or school functioning.”
ii. When considering the BPRS score, I again find that the rating of 30 provided by Dr. Lonhorn-Geddes more accurately reflects the applicant’s psychological state based on the applicant’s own testimony. Dr. Longhorn-Geddes provided high ratings for somatic concerns and guilt, and moderate ratings for depression and anxiety. During his testimony, the applicant spoke about the impact of chronic pain affecting his mood and his ability to participate in physical activity as well as his guilt over how his accident has impacted his family. Therefore, I find that the rating of Dr. Longhorn-Geddes adequately captures these concerns, as well as the applicant’s pain-emotion interplay. Without the benefit of seeing the broken-down specific scores which constituted his BPRS score of 46 ascribed by Dr. Shaul I cannot adequately determine why he felt a higher rating was warranted and which other symptoms were rated highly.
16Accordingly, I find the applicant is not catastrophically impaired under criterion (7). By accepting the GAF and BPRS scores of Dr. Longhorn-Geddes over those of Dr. Shaul, the median score (regardless of which PIRS score is accepted) is 0% WPI. As a result of this, the applicant cannot reach a combined WPI rating of 55% or more. Without Dr. Shaul’s 20% rating under Chapter 14, the applicant would only have a combined rating of 49, falling short of the required threshold.
The applicant is not entitled to treatment plans ii(a) and (b)
17As the $65,000.00 funding limit was previously exhausted, no additional analysis is required to determine if the treatment plans in dispute are reasonable and necessary pursuant to the Schedule.
The applicant is not entitled to the remainder of the CAT assessment
18While the Tribunal has previously found that CAT assessments are payable outside the $65,000.00 funding cap, I do not find that the applicant has met their onus of demonstrating that the $2,000.00 outstanding was a reasonable and necessary cost on the basis of having received scant submissions on the matter.
19The applicant argued that the $2,000.00 not approved by the respondent was for a “review of the medical file” which assisted the assessor in completing their assessment. No further submissions were made as to what materials were covered, how long the review took, or what the final product looked like. While the respondent did not make any submissions on this matter, I am unable based on the submissions provided by the applicant to determine the reasonableness or necessity of this outstanding cost.
20Accordingly, I do not find that this proposed outstanding cost is reasonable and necessary.
The applicant is not entitled to interest
21No interest is owed as I find that no benefits are payable.
The applicant is not entitled to an award
22As the applicant is not entitled to the benefits in disputes, he is not entitled to an award.
ORDER
23The applicant is not deemed catastrophically impaired under criterion 7 of the Schedule.
24The applicant is not entitled to the assessments plans in dispute.
25The applicant is not entitled to interest.
26The applicant is not entitled to an award.
27The application is dismissed.
Released: December 11, 2023
Jeremy A. Roberts
Vice-Chair