Citation: Dada v. Allstate Insurance Company of Canada, 2023 ONLAT 20-014274/AABS

Licence Appeal Tribunal File Number: 20-014274/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:

Tirza Dada

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Christin Carmichael Greb

APPEARANCES:

For the Applicant:

Ray Di Gregorio, Counsel

For the Respondent:

Nawaz Tahir, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant was injured in an accident on June 6, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent on the basis that the treatment plan is not reasonable and necessary as a result of her involvement in the accident. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are in dispute:

a. Is the applicant entitled to $4,400.00 for a neuropsychological assessment and psychometric testing recommended by Dr. Fulton in a treatment plan (OCF-18) submitted on October 21, 2020 and denied on October 28, 2020?

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

RESULT

4The applicant has not demonstrated that the OCF-18 for a neuropsychological assessment and psychometric testing is reasonable and necessary and is therefore not entitled to payment under the Schedule.

5The applicant is not entitled to interest on overdue payments as no benefits are owing.

ANALYSIS

The applicant is not entitled to $4,400.00 for a neuropsychological assessment and psychometric testing.

6I find that the applicant has not presented sufficient evidence to establish that the proposed assessment and testing is reasonable and necessary.

7To receive payment for a treatment plan 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. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

8The applicant submitted an OCF-18 dated October 21, 2020 in the amount of $4,400.00 for a neuropsychological assessment and psychometric testing. The treatment plan did not contain any information as to the goals of the treatment or whether their costs were reasonable. The respondent denied this OCF-18 by stating in the Explanation of Benefits that “to date, we have not been provided with any compelling medical evidence documented by your family physician or any objective documentation to support that any ongoing assessments are reasonable and necessary.” As well, the respondent asserts that the file has been inactive since August 11, 2017 and as such did not warrant scheduling a s. 44 Insurer’s Examination (“IE”).

9The applicant relies upon the medical records of Drs. Syty-Golda, Savelli, and Golda to demonstrate that she suffers from ongoing headaches, and depressive symptoms from the time of the accident.

10The applicant puts forward the medical records of Dr. Syty-Golda in July and December 2016 in which the applicant complains of insomnia, ongoing pain from the time of the accident and PTSD. In 2017 and 2018, Dr. Syty-Golda notes additional pain entries and headaches, which purportedly did not exist prior to June 2017.

11In 2018, the applicant was seen by Dr. Savelli, neurologist, for ongoing headaches, which have “become more intense and constant within the last two years.” Dr. Savelli notes, during a follow up in 2019 and 2020, that the applicant continued to experience several headaches per month which could be controlled with medication.

12In 2020, the applicant is seen by Dr. Golda, who diagnoses her with Major Depressive Disorder.

13The applicant relies upon the “but for” test to argue the need for the denied Treatment Plan. The “but for” test as stated in Sabadash v. Farm et al, 2019 ONSC 1221, is used to determine causation. An applicant must show that “but for” the accident, the applicant would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

14The applicant argues that “but for the June 6, 2016 accident, she would not have sustained the accident-related impairments for which the Treatment is sought.” The applicant states that the prior collision a few months earlier was not severe enough to require her to seek immediate medical attention and by the time the subject accident occurred she had returned to work and regular activities. The subject accident was more severe, requiring the applicant to be extracted from the vehicle and causing her to crack two teeth. The applicant goes on to argue that she had not been treated for headaches or depressive symptoms in the two years prior to the subject accident. The applicant submits that this evidence shows that the subject accident is a necessary cause of her impairment.

15The respondent submits that there is no evidence of the applicant advancing any cognitive complaints as a result of her involvement in the accident. While the medical records show that the applicant continued to complain of headaches both prior to and following the accident, the origin of the headaches was diagnosed as cervicogenic or migrainous in nature, and not due to head injury from the accident.

16While the applicant does appear to continue to suffer from headaches and more recently depressive symptoms, as evidenced by the medical records of Dr. Syty-Golda, Dr. Savelli, and Dr. Golda, the evidence provided does not show that these are a result of the accident. At no time did any of Dr. Syty-Golda’s, Dr. Savelli’s or Dr. Golda’s medical records recommend additional neuropsychological or psychological testing or treatment.

17The applicant has a pre-existing history of depression and migraines, as noted in the medical records of Dr. Syty-Golda in 2014 and 2015. While the applicant argues that she had not received treatment for headaches or depression in the two years leading up to the subject accident, the medical records show otherwise. The applicant’s medical records show medications and prescriptions to treat depression and migraines at the end of 2014 as well as a visit in September 2015 for more complaints of headaches. In 2016, the applicant was again treated for headaches immediately following the first motor vehicle accident.

18In 2020, Dr. William Fulton, neuropsychologist, submitted the OCF-18 in dispute for approval. Dr. Fulton opines that the applicant “had sustained a mild cognitive disorder, adjustment disorder, post-traumatic stress disorder, and a somatoform disorder as a result of the accident.” The respondent requested “a copy of the diagnostic report including, but not limited to, clinical notes and records, copies of specialist reports and any other information relied upon to determine that a Neuropsychological and Psychometric Assessment are reasonable and necessary,” and Dr. Fulton’s file was subsequently produced.

19The complete file of Dr. Fulton states that there was a referral from the applicant’s counsel, and that several voicemails were left. There is no evidence in the file that states that Dr. Fulton assessed the applicant or reviewed previous medical records. There is also no information put forward by Dr. Fulton or the applicant as to the goals for the neuropsychological assessment and psychometric testing, how these goals would be met, and whether the overall costs of achieving them are reasonable, other than they are to be assessed and would be rendered post-assessment.

20I find that the applicant has not demonstrated that “but for” the accident, the applicant would not have suffered the injuries she is seeking treatment for. The applicant has a pre-existing and ongoing history of depression and headaches. The applicant’s physicians saw no need to refer her for further treatment or testing for headaches or depressive symptoms. The applicant did not make any claims for treatment of injuries caused by the accident between 2017 and when the Treatment Plan in dispute was submitted in 2020.

21I find that Dr. Fulton’s clinical notes and records do not support the applicant’s position. While diagnosing the applicant with multiple disorders, these records do not give evidence as to whether Dr. Fulton even assessed the applicant or why the neuropsychological assessment and psychometric testing are necessary as a result of impairment sustained in the accident.

22I find that the applicant has not demonstrated that the OCF-18 for a neuropsychological assessment and psychometric testing is reasonable and necessary. The applicant has not put forward any evidence as to what each assessment would entail and why two assessments are required. The cost of the Treatment Plan is also not reasonable as it goes beyond the limit for assessments as prescribed by s. 25(5)(a) of the Schedule.

ORDER

23The applicant is not entitled to $4,400.00 for a neuropsychological assessment and psychometric testing recommended by Dr. Fulton in a treatment plan (OCF-18) submitted on October 21, 2020.

24As no benefits are payable, no interest is payable under s. 51.