Licence Appeal Tribunal File Number: 22-005295/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:
Jayantha Satheeskumar
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR: Deborah Neilson
APPEARANCES:
For the Applicant: Jayantha Satheeskumar, Applicant Mark Stoiko, Counsel
For the Respondent: Jennie Baroudi, Claims Representative Rozlien Brikha, Counsel Jason Kerr, Counsel
HEARD: by Videoconference: October 3 to 6, 2023
OVERVIEW
1Jayantha Satheeskumar, the applicant, was involved in an automobile accident on February 20, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant claims she is entitled to non-earner benefits (“NEBs”), physiotherapy, and the cost of catastrophic impairment assessments, a neurological assessment, a chronic pain assessment, and a psychological assessment. The applicant is also claiming entitlement to a Regulation 664 award and interest. The respondent submits the applicant is barred from proceeding with her claim for NEBs because she failed to attend an insurer’s examination (“IE”). The respondent denied the applicant’s other claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and, therefore, fall within the Minor Injury Guideline Superintendent’s Guideline 01/14 (“MIG”). It also submits that the treatment plans in issue are neither reasonable nor necessary as a result of the applicant’s accident injuries. The applicant’s position is the opposite.
3I determined that the applicant is not barred from pursuing a claim for NEBs. However, she is not entitled to NEBs and her injuries are within the MIG. She is not entitled to physiotherapy, an award, or the cost of neurological, chronic pain or catastrophic impairment assessments. She is entitled to no more than $400.00 for the cost of that part of a psychological assessment that provides advice or education with respect to the applicant’s psychosocial issues, plus any interest payable in accordance with the Schedule.
PRELIMINARY ISSUE
4The preliminary issue before me is as follows and not as set out in the case conference order:
i. Is the applicant barred under s.55 of the Schedule from applying to the Tribunal for NEBs because the respondent provided her with notice in accordance with the Schedule that it requires an examination under s. 44, but the applicant has not complied with that section?
5The respondent submits that the applicant failed to attend at an occupational therapy IE that it requested under s. 44 of the Schedule. The evidence is that the respondent scheduled an in-home occupational therapy assessment IE and an IE by a general practitioner. The IE by the general practitioner was completed and a copy of his report was provided to the applicant. I find that the respondent has failed to satisfy its onus to show on a balance of probabilities that the applicant failed to submit to the in-home occupational therapist’s IE.
6Initially the occupational therapy in-home IE was booked for October 2020 and was rescheduled. The applicant testified that a translator showed up at her house at the scheduled time, but the occupational therapist did not.
7The occupational therapy IE was rescheduled to January 12, 2021. At the applicant’s request, the IE was rescheduled to March 24, 2021. The applicant testified that that it may have been rescheduled because she was tending a patient who had COVID-19 at the time. The applicant testified that a translator again attended at her home on March 24, 2021, but the occupational therapist did not. Both the applicant and the translator phoned the respondent, but the applicant could not contact the respondent. The translator advised the applicant that she was able to contact the respondent and was told that the assessment was cancelled due to COVID-19.
8The evidence that the respondent relies on in support of its claim that the applicant failed to attend an occupational therapy IE is a letter from the adjuster to the applicant stating that she failed to attend three assessments, one of which was rescheduled. I have no evidence of where the adjuster obtained this information. No adjusters’ notes were filed to indicate that the adjuster spoke to the assessment company or the occupational therapist about the applicant’s non-attendance. Nor were any letters filed from the assessment company or the occupational therapist stating that the occupational therapist did, in fact, attend at the applicant's home and the applicant was not present. I was provided with no reason to disbelieve the applicant's testimony.
9Although hearsay is allowed at the Tribunal, the most reliable evidence will carry the greatest weight. In this case, I had first-hand testimony from the applicant and hearsay evidence from the respondent from an unknown source. Accordingly, I give more weight to the applicant’s testimony as I find it is the most reliable. For these reasons, the respondent’s request that the applicant be barred from pursuing NEBs at the Tribunal for failure to attend an IE under s.55 of the Schedule is dismissed.
ISSUES
10The substantive issues in dispute are:
i. 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 Minor Injury Guideline limit? The parties agree there is $1,300.00 remaining under the MIG policy limits.
ii. Is the applicant entitled to an NEB of $185.00 per week from March 20, 2020 to February 20, 2022?
iii. Is the applicant entitled to $5,542.82 for chiropractic treatment, acupuncture, and physiotherapy from Meditecs proposed by Tobias Chung, chiropractor, in a treatment plan (OCF-18) dated November 12, 2022?
iv. Is the applicant entitled to assessments at Meditecs proposed by Tobias Chung as follows:
i. $4,373.10 for a chronic pain assessment proposed in a treatment plan dated November 12, 2022;
ii. $7,878.10 for a neurological assessment and EMG testing proposed in a treatment plan dated November 12, 2022;
iii. $4,373.10 for a psychological assessment proposed in a treatment plan dated November 12, 2022; and
iv. $23,142.40 for a catastrophic orthopedic assessment proposed in a treatment plan dated November 12, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
PROCEDURAL ISSUES
11The respondent raised the following procedural issues:
i. Whether the applicant was barred from claiming a Reg. 664 award because she failed to serve and file the particulars of the award; and
ii. Whether the applicant was barred from relying on case law and a factum because she failed to serve a brief of authorities within ten calendar days prior to the hearing.
The applicant is barred from claiming a Reg. 664 award
12The respondent submitted that the applicant was barred from claiming a Reg. 664 award because she failed to provide particulars of the claim, contrary to the case conference order. She was ordered to provide the particulars of why she was seeking an award within 30 days of receipt of the adjusters’ log notes, but failed to do so. The applicant did not seek an extension of time for providing the particulars by way of motion filed before the hearing or by way of motion brought orally at the hearing. Nor did the applicant provide any reason for why she failed to provide particulars of the award.
13Under Rule 9.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Common Rules”), if a party fails to comply with an order with respect to disclosure, that party may not rely on the document or thing as evidence without the consent of the Tribunal. Under Rule 3.2 of the Licence Appeal Tribunal Rules (“Rules”), the Tribunal may make such orders or give such directions in proceedings before it to control its process and to prevent abuse of its process. Common Rule 9 applies to this matter because Rule 9 only applies to appeals commenced on or after August 21, 2023 or to any appeal commenced before August 21, 2023 for which the first notice of case conference is issued on or after August 21, 2023.
14I find that to allow the applicant to proceed with her claim for an award would amount to an abuse of the Tribunal’s process. The applicant made submissions in her closing statement about why she was claiming an award, but did not seek permission to do so. Her disregard of the Tribunal’s order without any reason, explanation or request for permission to proceed with the claim is an abuse of process.
15The respondent is prejudiced by not knowing the particulars of the award claimed. Disclosing her grounds for the award at the end of the hearing after the parties have closed their cases is trial by ambush. The applicant’s timing means the respondent was unable to call any evidence to respond to the applicant’s allegations. The lack of any request or motion from the applicant to extend the time for serving the particulars of the award and the lack of reasons given for why she failed to comply with the case conference order can only mean that she was not serious about claiming an award. Given the prejudice to the respondent, I have not considered any submissions the applicant made with respect to an award as no permission was sought to make those submissions, contrary to Common Rule 9.4.
The applicant is not barred from relying on case law
16The case conference order required the parties to serve any briefs of authorities they were relying on no later than ten days prior to the hearing. The applicant provided the respondent with a factum/statement of law citing the case law she relied on while she was making her closing submissions. Her factum contained two cases that she did not mention in her oral submissions. The respondent had that evening to review the caselaw. However, the respondent objected to the applicant filing a factum on the basis that it was filed late and that the hearing was an oral hearing, not a written hearing. The factum contained no written evidence and did not reference any of the evidence. Therefore, while it was titled a “factum”, it was a statement or memorandum of law and mirrored the applicant’s submissions.
17The respondent relied on Rule 9.5.2 and submitted that under Rule 9.3, the applicant was prohibited from relying on the factum. I find that neither Rule 9.5.2 nor Rule 9.3 assist the respondent as those Rules do not apply to this issue. As already noted, under Rule 9.6, Rule 9 only applies to appeals commenced after August 21, 2023 or for which the first notice of a case conference is issued after August 21, 2023. This matter does not fall under either of those conditions. Accordingly, Common Rule 9 applies. Common Rule 9.4 allows the Tribunal to exclude documentary evidence that is not served in accordance with an order, but is silent with respect to case law and briefs of authorities.
18The respondent relied on a number of cases that held it is procedurally unfair for a party to serve and file all of the case law she relies on last minute. I agree with this reasoning. However, the respondent was provided with an opportunity to review and address the case law relied upon by the applicant. Further, the respondent agreed to the applicant relying on the case law she cited. Accordingly, while the applicant’s factum was ultimately not before me, the case law she relied on was.
ANALYSIS
The applicant is not entitled to non-earner benefits
19Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a complete inability to carry on a normal life as an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
20The applicant initially testified that she was working about 40 hours per week as a cleaner, was studying to become a personal support worker (“PSW”) and was putting in 6 hours of work per day with her housekeeping chores prior to the accident. She later clarified that her work for the cleaning company encompassed about 20 to 25 hours per week and that she likely included the time spent doing her housekeeping chores in the total of 40 to 42 hours per week that she worked pre-accident. Prior to the accident her working hours were 11:00 PM to 3:00 AM. She stopped working as a cleaner a month or two after the accident, but graduated as a PSW in October 2020 and was able to secure a job as a PSW in December 2020. Since then, she has been working from 11:00 AM to 8:00 PM as a PSW or twice the hours she did before the accident. I find that her ability to finish her coursework and work twice the hours she did pre-accident does not support the applicant’s claim that she has an accident injury that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.
21The applicant testified that, prior to the accident, she was responsible for all housekeeping, cooking, grocery shopping, banking, and indoor gardening. She also testified that she would take her children to basketball and soccer games and also played basketball herself. Since the accident, she no longer takes her children to their games and stated that she hired a coach for her children to ensure that they are staying active. She testified that she is now only able to do 30 percent of her housekeeping chores. The applicant's evidence was supported by her husband’s testimony. He testified that the applicant is still able to take time from work to pick up her children from school. Neither of them testified as to the reason why the applicant’s activity levels have decreased or at what point after the accident they started to decrease.
22The applicant testified that she injured her right arm and right knee in the accident. There is no mention in any of her records of a right knee injury. She testified that since May 2021, she has back pain when she works as a PSW for which she takes Tylenol. Given that the back pain did not start contemporaneously with the accident, I am unable to find that it has any relationship with the accident.
23The applicant’s husband testified that the applicant had issues with her left arm and he had to help her with massage and an ointment. After a few days she was suffering from severe pain and was also complaining of chest pain. Both the arm and the chest pain were from the seat belt. It is not clear if his reference to a few days was in relation to the day of the accident. He also testified that, since the accident, the applicant has been complaining of swelling in her arm and headaches. However, the only mention of accident injuries in the clinical notes and records of Dr. Dilipkumar Mather, the applicant’s family physician, is the note of March 7, 2020, at which time the applicant complained of pain in her neck and both shoulder joints, but no chest pain. The applicant was advised to apply heat pads and Votlaren gel and to see Dr. Mather again if needed.
24The applicant underwent a course of physiotherapy and was discharged from physiotherapy in August 2020 with no pain complaints. This implies that the applicant’s soft tissue injuries to her neck and shoulders had resolved by then. In fact, the applicant’s physiotherapist, Varun Vasudeva, testified that the applicant’s accident injuries resolved by August 2020.
25What I did not hear was any evidence as to why the applicant’s housekeeping activities have reduced, why she is no longer taking her children to the park or to their sports activities and when these reductions in activity occurred. I heard no evidence that it was because of her accident injuries. The evidence that the applicant’s injuries had resolved by August 2020 implies that any reduction in her pre-accident activities is because she is now working double the hours she was working before and during a time of day that she used to have available to spend with her children. Accordingly, I find that the applicant has not proven that she is entitled to NEBs.
The applicant is in the Minor Injury Guideline
26Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustained impairments that are predominantly a minor injury. Section 3(1) defines a minor injury 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. The applicant may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG or, under s. 18(2), that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
27As noted earlier, the applicant sustained soft tissue injuries from the accident. She submits that she should be out of the MIG because the Schedule is supposed to be consumer protection legislation, but the MIG limits are contrary to consumer protection. She also submits that she has a psychological injury and chronic pain, which take her out of the MIG.
The MIG is not contrary to consumer protection legislation
28For the applicant’s submission that the MIG ought not to apply because it is contrary to consumer protection, some evidence supporting that submission ought to have been filed. The applicant provided no evidence that the $3500 policy limits for a minor injury are inadequate for helping an insured person with a minor injury from achieving maximal medical recovery. Nor was I provided with any authority to support the applicant’s submissions. Accordingly, this submission does not take the applicant out of the MIG.
Psychological impairment does not remove the applicant from the MIG
29Under the MIG, psychosocial issues are considered sequelae of soft tissue injuries given that supportive intervention for psychosocial issues is one of the discretionary interventions covered under s. 7(b)(iii) and s. 8(d) of the MIG. However, a psychological impairment that is more than psychosocial sequelae, such as one severe enough to result in a diagnosis of a psychological impairment, is not included in the MIG.
30The applicant submits that she has a psychological impairment as a result of the accident. The respondent submits that there is no evidence of anything more than psychosocial sequelae. I find that while the applicant may have some psychological symptomology as a result of the accident, she has not proven that it is any more than psychosocial sequelae that is treatable within the MIG.
31The applicant testified that she lost her parents when she was six years old in a car accident. As a result, after the subject accident she has flashbacks. She thought she could have died in the accident and was afraid for her children growing up without a parent if something happened to her. I heard no evidence on how often the applicant has flashbacks or when.
32The applicant testified that she stopped working two months after the accident as a cleaner of a restaurant/bar in a hotel because she was scared to drive at night and not because of COVID-19. However, her husband testified that the applicant’s work slowed down because of COVID-19. It is well known that all restaurants in Ontario were shut down as of March 16, 2020, due to COVID-19. Further, the applicant testified that she still drives a vehicle. Accordingly, her anxiety and flashbacks are not severe enough to prevent her from driving a vehicle.
33The applicant’s husband testified that the applicant is irritable when she comes home from work and that she only displays her irritability to him. I do not find this is sufficient to show the applicant has a psychological impairment that takes her out of the MIG given that the husband also testified that she does not display any irritability to her patients.
34The respondent submits that if the applicant had a psychological impairment from the accident that was more than mere sequelae, one would expect to see complaints to her family doctor, treatment providers or her spouse. I agree.
35There is no record of any psychological complaints in any of the medical records other than the initial note from the applicant’s physiotherapist, Mr. Vasudeva, recommending a psychological assessment, and a treatment plan from a chiropractor, Dr. Tobias Chung dated November 12, 2022. I find Mr. Vasudeva’s initial recommendation for a psychological assessment is not persuasive evidence of a psychological impairment because he was no longer recommending a psychological assessment when he discharged the applicant from treatment six months later. I give no weight to Dr. Chung’s comments in the treatment plan because the applicant testified that she was not assessed or seen by anyone at Dr. Chung’s clinic. I have no reason to disbelieve the applicant. In fact, her testimony is supported by Dr. Chung’s proposal that the applicant undergo an initial chiropractic assessment in addition to the cost of preparing the treatment plan. If Dr. Chung had seen the applicant before preparing the treatment plan, he would not need to charge her to assess her again. Further, neither Dr. Chung nor Mr. Vasudeva are qualified to diagnose psychological injury. Nor did I hear any testimony from the applicant’s treatment providers that she had any psychological complaints. I heard no evidence that she has expressed any concerns to her husband about anxiety as a result of the accident in conjunction with the loss of her parents.
36I accept that the applicant may be more irritable and anxious after the accident. However, these factors do not add up to a psychological impairment that is more than mere sequelae as they are not severe enough to disclose to her husband or to health practitioners, have not affected the applicant’s function or have apparently resolved. Accordingly, the applicant has failed to prove on a balance of probabilities that she has a psychological impairment as a result of the accident that takes her out of the MIG.
The applicant’s chronic pain does not remove her from the MIG
37Despite the applicant’s submissions, a diagnosis of chronic pain is not enough to remove an insured person from the MIG. Many people live and function with chronic pain. For chronic pain to be more than mere sequelae from soft tissue injuries and to take one out of the MIG, it must be functionally disabling. The respondent submits, and I agree, that the six factors set out in the American Medical Association Guides for determining whether an individual has chronic pain syndrome are helpful in determining whether there is evidence to establish if a claimant’s pain is of such a severity that it significantly disrupts their pre-accident activities of daily living and, therefore, removes them from the MIG. Those factors to consider are:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
38The evidence was that the applicant does not fit within any of those factors as she takes Tylenol as needed, is able to work at a more physically demanding job, was pain free as of August 2020, there is no evidence she developed illness behaviours and she has no excessive dependence upon health care providers. There was no evidence that any withdrawal from social or pre-accident recreation activities is due to accident injuries as opposed to a change in work schedule.
39The applicant submits that her chronic pain is functionally disabling because she testified that she is tired and sore when she comes home from work. I am not convinced that this is because of chronic pain for the following reasons.
40The applicant was able to do a PSW placement as required by her coursework in August 2020. She graduated with her PSW certificate after writing her final exam in October 2020 and started working as a PSW in December 2020. She testified that her work as a PSW is much more physically demanding than her work as a cleaner. I find that changing employment to a more physically demanding job is not consistent with being functionally disabled from pain.
41Given that the applicant had no pain complaints from her accident injuries as of August 25, 2020, I am not satisfied that her tiredness and soreness are from the accident instead of her new more physically demanding change in jobs. My comment applies equally to the reason for the reduction in housework and the applicant’s time with her children.
42The applicant told Dr. Alan Kruger, a physician who conducted an IE of the applicant on January 11, 2021, that she had trouble with most of her household chores primarily due to physical pain. She managed to get some of her chores done with modification. However, her complaints at the time were pain and numbness in her right wrist and intermittent lumbar pain. However, back pain was not identified by either Dr. Mather or Mr. Vasudeva as an accident injury. Further, if the applicant started experiencing pain again after her course of physiotherapy was completed, I would have expected her to seek further treatment. The fact that she did not do so for two and a half years, despite having another $1300 available in policy limits, implies that any pain complaints she had after discharge from physiotherapy were minor. Accordingly, the applicant has failed to prove on a balance of probabilities that she has chronic pain that is severe enough that it takes her out of the MIG.
The applicant is not entitled to $1300.00 remaining in the MIG limits of the $5,542.82 recommended for chiropractic treatment
43The applicant is seeking entitlement to $5,542.82 for chiropractic treatment, acupuncture, and physiotherapy proposed by Dr. Chung in a treatment plan dated November 12, 2022. The applicant submits that she is at least entitled to the recommended physiotherapy up to the remaining policy limits under the MIG. The respondent submits that she is required to prove that the treatment is reasonable and necessary as a result of her accident injuries. I agree with the respondent.
44Under s.40(7) of the Schedule, if treatment available under the MIG was not provided within 12 weeks of the initial visit, the applicant was required to submit a treatment and assessment plan under s.38 of the Schedule if she wished to obtain medical or rehabilitation benefits to which the MIG would otherwise apply. The applicant has $1300.00 in policy limits remaining under the MIG and she submitted Dr. Chung’s treatment plan more than two years after her discharge or outside of the 12 week period as required under s.40(7). Under s. 40(8) of the Schedule, if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred within the MIG policy limits are deemed reasonable and necessary. I have determined that the MIG applies to the applicant. Therefore, she is entitled to the benefits set out in the disputed treatment plan, if incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule. However, according to the applicant’s testimony, she has not incurred any of the goods or services recommended by Dr. Chung.
45To otherwise receive payment for a treatment and assessment plan under s. 15 and s. 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. Given my determination that the applicant’s injuries resolved by August 2020, I am not satisfied that any need she may have for the treatment recommended by Dr. Chung is due to her accident injuries as opposed to the heavier physical demands of her work as a PSW. Accordingly, this claim is dismissed.
The applicant is not entitled to the cost of assessments claimed
46The applicant is seeking entitlement to the cost of a chronic pain assessment, the cost of a psychological assessment and the cost of a neurological assessment.
47The test for entitlement to the cost of an assessment under s. 25 of the Schedule does not require the applicant to prove that she has an impairment caused by the accident of the nature of the type of the assessment. It is whether there is a possibility that she has that type of impairment caused by the accident. If so, the applicant must show on a balance of probabilities that the assessment is necessary under s. 25 of the Schedule for the review of or preparation of a disability certificate or treatment plan and that the fees charged for that assessment are reasonable.
48Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Professional Services Guideline”). Under s. 25(5)(a) an insurer is not required to pay more than $2,000 plus HST for an assessment. However, the applicant is in the MIG, which imposes further limits on the assessments that are allowed.
49Section 7(b)(i) of the MIG allows for an initial assessment at a cost, under s. 7(d), of $215.00, regardless of the type of assessment provided. The MIG also allows a fee of $200.00 for monitoring under s. 8(c) if treatment under Block 3 is not commenced. Another possible allowance under the MIG for the cost of an assessment is under s. 8(d) of the MIG, which allows $400.00 for supplementary goods and service during the treatment phase. Appendix B of the MIG sets out the fee schedule and includes the fees payable for diagnostic assessments such as x-rays. A more detailed list for payment of x-ray fees is listed in Appendix C. Other than s. 7(b)(i), s. 7(d), s. 8(c), s. 8(d) and Appendix B and C, there is no allowance for all the assessments the applicant is claiming under the MIG.
50As the applicant is in the MIG, the most she is entitled to claim under the MIG is for only one of the three assessments to a maximum of $400.00 under s. 8(d) of the MIG, if an assessment is very broadly construed as a supplementary good and service.
The applicant is not entitled to the cost of a chronic pain assessment
51The applicant claims she is entitled to $4,373.10 for the cost of a chronic pain assessment by Dr. Joseph Kwok, who is, according to the College of Physicians and Surgeons of Ontario, an orthopaedic surgeon.
52I have already determined that the applicant’s injuries resolved and, accordingly, if she has any pain complaints, it is not as a result of any accident injury. The assessment is not an initial assessment as the applicant already underwent one with Mr. Vasudeva. Nor does the treatment plan include any of the supplementary goods and services set out in s. 8(d) of the MIG. Accordingly, the assessment is not necessary as a result of the applicant’s accident injuries, nor as a supplementary service or an initial assessment under the MIG. This claim is, therefore, dismissed.
The applicant is not entitled to the cost of a neurological assessment
53The applicant seeks entitlement to a neurological assessment in the amount of $7,876.10. The assessment proposed by Dr. Chung is for $2,000.00 for a neurological assessment by Dr. Lance Majl, neurologist, $2,000.00 for an inspection of arm nerves by Dr. Ali Ghouse, physiatrist, and another $2,000.00 for inspection of the head and neck nerves by Dr. Ghouse for $2,000.00.
54The case conference order indicates that the treatment plan also recommended EMG studies. The maximum payable for diagnostic assessments under Appendix C of the MIG is $59.22 for more than six views for x-rays of the cervical spine. There is no other allowance in the MIG or Appendix C of the MIG for inspections of the nerves of the head and arms or EMG studies. The proposed assessment is not an initial assessment as the applicant already underwent one with Mr. Vasudeva. Nor does the treatment plan include any of the supplementary goods and services set out in s. 8(d) of the MIG. Accordingly, this claim is dismissed.
The applicant is entitled to no more than $400 for the cost of a psychological assessment
55The applicant claims entitlement to a psychological assessment by Dr. Leon Steiner, psychologist, in the amount of $4,373.10 inclusive of HST. Although the applicant does not have a psychological impairment, she may have some psychosocial sequelae as a result of the accident for the reasons already provided. Under s. 8(d) of the MIG, the applicant is entitled to supplementary goods and services consisting of supportive interventions such as advice/education to deal with accident-related psychosocial issues, such as but not limited to: distress; difficulties coping with the effects of her injury; or driving problem/stress. Under s. 8(d) and s. 8(f) of the MIG, the maximum payable for supportive intervention of this type is $400.00.
56The treatment plan provides no breakdown of the hours required for the assessment nor Dr. Steiner’s hourly fee. The only fee listed is a bulk fee of $2,000.00 plus $1,000.00 for a file review. The treatment plan does not list the extent to which the assessment includes a counselling component. However, I have interpreted the treatment plan broadly in accordance with the consumer protection nature of the Schedule. Accordingly, I find that the applicant is entitled to no more than $400.00 of the proposed treatment plan to the extent that Dr. Steiner’s assessment contains advice and or education that addresses the applicant’s psychosocial sequelae as a result of the accident. The remainder of the claim is dismissed as it exceeds the $400.00 maximum allowed under the MIG for supplemental services.
The applicant is not entitled to a catastrophic impairment assessment
57The applicant is seeking $23,142.40 for a multidisciplinary catastrophic impairment assessment recommended by Dr. Kwok in a treatment plan dated November 12, 2022. Under s.45 of the Schedule, an insured person 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. An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician, but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
58The respondent relies on D.L. v Aviva Insurance Canada, 2020 CanLII 63542 (ON LAT) and submits that it is inappropriate for the cost of catastrophic impartment assessments to be funded by an insurer when an insured person is in the MIG. In that case the Tribunal held that, bearing in mind that by their nature assessments are speculative and their purpose is to determine if an applicant has a specific condition or meets a specific threshold, there must be some suggestion that the specific condition exists and arose from the accident and that further investigation is reasonable and necessary. I agree with this reasoning and find that has not been established in this case. There is insufficient objective medical evidence to suggest the applicant might meet any of the tests for catastrophic impairment. Accordingly, this claim is dismissed.
Interest
59Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the $400.00 for psychological services in accordance with the Schedule.
Award
60The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no particulars of the claim for an award were served as ordered, this claim is dismissed.
ORDER
61The applicant’s injuries are within the MIG.
62The applicant is entitled to no more than $400.00 of the treatment plan for a psychological assessment.
63The applicant is entitled to interest on the $400.00 for psychological services in accordance with the Schedule.
64The remainder of the applicant’s claims are dismissed.
Released: December 4, 2023
Deborah Neilson Adjudicator