Richardson v. Economical Insurance Company, 2023 CanLII 116497

Citation: Richardson v. Economical Insurance Company, 2023 ONLAT 21-011967/AABS

Licence Appeal Tribunal File Number: 21-011967/AABS

In the matter of an application pursuant to section 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Kriston Richardson

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Taivi Lobu

APPEARANCES:

For the Applicant:

Mariya Verkhovets, Counsel

For the Respondent:

Jason Frost, Counsel

Keisha De Coteau, Counsel

Court Reporter:

Heather Penfound-McNutt

Heard by Videoconference:

May 29 and June 1, 2023

OVERVIEW

1Kriston Richardson, the applicant, was involved in an automobile accident on October 8, 2020, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

The respondent is not entitled to withhold accident benefits on grounds related to the examination under oath.

2I find that the respondent is not relieved of liability to pay accident benefits to the applicant because of events pertaining to an examination under oath.

3The respondent submits that the applicant is not entitled to payment of benefits because the applicant has not complied with the requirement to submit to an examination under oath, that a scheduled examination under oath was prematurely terminated because of the conduct of applicant counsel, and that the applicant had not accepted the invitation to reschedule the examination. Accordingly the respondent submits that pursuant to the provisions of section 33(6) of the Schedule the respondent is not liable to pay benefits to the applicant.

4The applicant takes the position that he complied with the requirements to submit to the examination under oath; that he attended the examination under oath; was ready and willing to answer questions about his accident benefits claim; and that the respondent insisted on proceeding with a mixed examination inclusive of the applicant’s property damage claim.

5There is no dispute that the applicant attended for the examination and that the respondent sought to conduct an examination which covered both the accident benefits claim and property damage claim. While counsel for the applicant objected to the examination including questions about the property damage claim, counsel for the respondent insisted on proceeding with an examination inclusive of the property damage claim. A difficult dynamic ensued and the examination was terminated.

6On April 29, 2021, the respondent wrote to the applicant and informed him that benefits would be suspended until he submitted to an examination under oath and provided a reasonable explanation for his counsel’s lack of cooperation. No further examination occurred.

7While section 33(6) of the Schedule states that an insurer is not liable to pay a benefit for any period during which the insured person fails to comply with the requirement to submit to an examination under oath, this provision is not available to an insurer who has not limited the scope of the examination to matters relevant to the applicant’s entitlement to accident benefits under the Schedule. (See sections 33 (5) and (7)).

8As the respondent sought to proceed with an examination inclusive of the applicant’s property damage claim, it did not comply with the requirements of section 33(5) which prohibits a mixed examination. Accordingly, I find that the respondent is unable to rely upon section 33(6) and is not relieved of its liability to pay benefits to which the applicant is otherwise entitled.

Procedural issue

The report of Dr. Waxer is admitted as expert evidence

9Dr. Peter Waxer, psychologist, prepared a report on behalf of the applicant on March 9, 2021, under section 25 of the Schedule.

10The respondent submitted that this report should only be admitted as fact evidence and not accepted as expert evidence. Specifically, the respondent pointed out that the applicant had not complied with the timelines set out by Rule 10.3 of the Tribunal’s Common Rules of Practice and Procedure, October 2, 2017 (the Rules). The applicant only produced Dr. Waxer’s curriculum vitae (“CV”) and Acknowledgement of Expert’s Duty after the start of the hearing, not 30 days before as required for expert witness evidence by Rule 10.3. The applicant submitted that the respondent has long been in possession of Dr. Waxer’s report and the delay in providing Dr. Waxer’s CV and acknowledgment of expert’s duty was caused by challenges in locating him because he had retired.

11I am not persuaded by the applicant’s submission that it was not possible to file the Rule 10 documents in a timely manner. However, I also find that the respondent has long been aware of Dr. Waxer’s report and the applicant’s reliance upon it. His report was first provided to the respondent on April 20, 2021, in connection with a treatment plan for psychotherapy services of the same date. It was relied upon in three other treatment plans from April through August 2021. Dr. Waxer’s report was also produced to the respondent on October 5, 2021, albeit without a CV or Acknowledgment of Expert’s Duty.

12Rule 3.1(b) speaks to a liberal interpretation and provides me with discretion to waive or vary the Rules in order to ensure an efficient, proportional and timely resolution of matters on their merits. I find that the interest in adhering to the Rule 10.3 timeline for producing the Acknowledgement and CV of Dr. Waxer is outweighed by the interest of adjudicating the issues on the merits. In addition, although Dr. Waxer’s CV was not produced in accordance with the timelines of Rule 10, a short professional biography was included in his report which was provided to the respondent in 2021.

13For the reasons above, I have exercised my discretion under Rule 3.1(b) to accept the late filing of Dr. Waxer’s Acknowledgment of Expert’s Duty and CV.

ISSUES

14The issues in dispute are as follows:

1. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 15, 2020, to date and ongoing?

2. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

3. Is the applicant entitled to the full amount of the plan for $3,481.02 for physical rehabilitation services as proposed by chiropractor Dr. Dustin Yen in a plan/OCF-18 (“plan”) dated October 14, 2020, and denied on October 15, 2020?

4. Is the applicant entitled to $1,135.06 for physical rehabilitation services, proposed by chiropractor Dr. Yen in a plan dated January 07, 2021, and denied on January 13, 2021?

5. Is the applicant entitled to $2,662.67 claimed in relation to the plan for $3,130.77, for physical rehabilitation, proposed by chiropractor Dr. Yen, dated February 1, 2021, and denied on February 10, 2021?

6. Is the applicant entitled to $2,136.37 claimed in relation to a plan for $2,136.37 for physical rehabilitation services, proposed by chiropractor Dr. Yen dated April 06, 2021, and denied on April 14, 2021?

7. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by psychologist Dr. Lital Grinberg in a plan dated November 16, 2020, and denied on November 27, 2020?

8. Is the applicant entitled to $2,210.00 for psychotherapy services, proposed by social worker Ms. Punitha Manoharan in a plan dated April 26, 2021, and denied on May 07, 2021?

9. Is the applicant entitled to $2,460.00 for a cognitive assessment, proposed by occupational therapist Mr. Remik Zakrzewski in a plan dated April 26, 2021, and denied on May 07, 2021?

10. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by chiropractor Dr. Bill Nikols/physician Dr. Vince Basile in a plan dated April 26, 2021, and denied on May 07, 2021?

11. Is the applicant entitled to $2,460.00 for a neuropsychological assessment, proposed by psychologist Dr. Ilya Gladshteyn in a plan dated August 26, 2021, and denied on September 17, 2021?

12. Is the applicant entitled to $2,460.00 for chronic pain assessment, proposed by physician Dr. Grigory Karmy in a plan dated August 26, 2021, and denied on September 16, 2021?

13. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

15I find that:

i. The applicant is not entitled to an income replacement benefit.

ii. The applicant is removed from the Minor Injury Guideline.

iii. The applicant is entitled to payment, once incurred, of the following:

1. The plan for physical rehabilitation services, up to its total amount of $3,481.02, dated October 14, 2020.

2. The plan for $1,135.06 for physical rehabilitation services dated January 07, 2021.

3. The amount of $2,662.67 claimed in relation to the plan for $3,130.77, for physical rehabilitation services, dated February 1, 2021.

4. The amount of $2,136.37 claimed in relation to a plan for $2,136.37 for physical rehabilitation services, dated April 06, 2021.

5. The plan for a psychological assessment, for $2,460.00 dated November 16, 2020.

6. The plan for a chronic pain assessment, for $2,460.00 dated August 26, 2021.

iv. The applicant is not entitled to the following plans:

1. The plan for psychotherapy services for $2,210.00 dated April 26, 2021.

2. The plan for $2,460.00 for a cognitive assessment dated April 26, 2021.

3. The plan for a neurological assessment, for $2,460.00 dated April 26, 2021.

4. The plan for a neuropsychological assessment for 2,460.00 dated August 26, 2021.

v. The applicant is entitled to interest on the payment of overdue benefits pursuant to section 51 of the Schedule.

vi. The applicant is not entitled to an award.

ANALYSIS

The applicant is not entitled to an income replacement benefit.

16I find that the applicant has failed to demonstrate that he is entitled to an income replacement benefit.

17The applicant bears the burden of proving that he meets the applicable test for income replacement benefit on the balance of probabilities. There are two different tests for determining eligibility for an income replacement benefit, depending on the time period for which the benefit is claimed:

i. To receive payment for an income replacement benefit within the first 104 weeks of the accident, under section 5(1) of the Schedule, applicants must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment.

ii. To receive payment for an income replacement benefit after the first 104 weeks of the accident, applicants must meet the requirements under section 6(2)(b) of the Schedule and show a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

18The applicant submits that he should be receiving an income replacement benefit since the accident. The applicant directs me to the evidence of Dr. Shilpa Sethi, a family physician seen by the applicant at a walk-in clinic who recommended that he stay off work to recover from his injuries.

19I find that the applicant does not qualify for an income replacement benefit.

Income replacement benefit within the first 104 weeks post-accident

20To qualify for this benefit within the first 104 weeks of the accident, the onus is on the insured to demonstrate a substantial inability to complete the essential tasks of pre-accident employment. This means that when claiming an income replacement benefit within the first two years after an accident, an insured must identify the essential employment tasks, which tasks cannot be performed, and the extent to which such tasks cannot be performed. The applicant has not done so.

21Dr. Sethi, who treated the applicant on an as-needed basis at the walk-in clinic, testified that the applicant needed to take time off to rest and that he should not do a high physical labour job. However, there is no indication that she reviewed the applicant’s occupational role and employment tasks. Her medical chart does not identify the applicant’s work role or tasks, nor was such information presented in other evidence.

22The evidence about the applicant’s employment is as follows: the applicant in November 2020, provided a written statement to the respondent stating that he worked as a supervisor at Pro-Ply Custom Plywood since 2015. Beyond this the applicant did not however, address any of his job tasks in his statement. The examination-under-oath which had been scheduled by the respondent was terminated before the applicant’s employment was addressed. The applicant chose not to testify at the hearing. The evidence produced from his employer did not address the applicant’s work duties. I have not been directed to any other evidence outlining the applicant’s work tasks as a supervisor at Pro-Ply Custom Plywood.

23The applicant has not presented evidence of the essential tasks of his employment. By not providing such evidence, the applicant has not established the extent to which he has been unable to carry out such tasks as required under the Schedule. I am not prepared to make such a determination based on assumptions and conjecture alone: there were multiple ways by which the applicant could have presented such evidence but he chose not to do so, and the onus is on the applicant to show that he meets the requirements for the benefit. Dr. Sethi’s recommendation that the applicant stay off work to recover from injuries is insufficient in itself to allow for a determination of eligibility for an income replacement benefit under section 5(1).

24In any event, I find that even if the applicant otherwise qualified for an income replacement benefit, the respondent would not be liable to pay such a benefit before January 16, 2023 (more than 104 weeks after the accident) as the applicant had failed to provide the employment file requested by the respondent prior to that date.

25Section 33(1)1 of the Schedule requires that an insured provide, within ten business days after receiving a request from the insurer, “Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.” Section 33(6) stipulates that an insurer is not liable to pay a benefit in respect of any period during which the insured person is not in compliance with this requirement under section 33(1)1.

26For more than two years, the applicant did not comply with the respondent’s request under section 33(1)1 to produce the employment file. The respondent first requested that the applicant provide his full employment file by November 20, 2020. There were numerous follow-ups on this section 33(1) request: by letter of April 29, 2021; in the respondent’s response to the application made to this Tribunal (May 19, 2022, Schedule C); and by letters to the applicant enclosing charts of outstanding productions dated October 1, 2022 and December 2, 2022. The employment file was produced by the applicant on January 16, 2023, over two years after the respondent’s initial request made in October 2021.

27Prior to the production of the employment file, the applicant had not provided the respondent with any other confirmation of his employment. The “Employer’s Confirmation Form” (OCF-2), included with the employment file, was only completed by the employer on January 4, 2023. As well, as noted above, the employment file produced did not contain information about the applicant’s employment tasks.

28The applicant provided no explanation for the prolonged delay in responding to the section 33(1) request for the employment file.

29Pursuant to section 33(6) and (8), an insurer is only liable to pay for a benefit during periods of non-compliance with a section 33(1) request if an insured provides a reasonable explanation for the delay in complying. The applicant has not provided any explanation for his delay of well over two years in responding to the section 33(1) production deadline for the employment file.

30I find that the respondent is not liable to pay an income replacement benefit for any period prior to January 16, 2023.

Income replacement benefit after the first 104 weeks post-accident

31To receive an income replacement benefit after January 16, 2023, the applicant must meet the qualifications for receiving an income replacement benefit after 104 weeks post-accident. These qualifications are under section 6(2)(b) of the Schedule. The applicant must show that he suffers “a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

32I find that the applicant has not met onus to show his eligibility for the post-104 week period. He has not presented evidence of his “education, training or experience” adequate to enable an assessment for an income replacement benefit during this period.

33The only evidence of the applicant’s education, training or experience apart from the applicant’s statement that he worked as a supervisor at a woodworking plant, is short background information included in the psychological assessment report of Dr. Waxer of March 9, 2021 which assessed the applicant’s psychological condition at six months post-accident. It states in a background section that the applicant had completed his high school education, worked on automobiles, worked in a hardware store, worked in a warehouse as a picker and sorter, and worked as a supervisor at a woodworking plant. The report did not otherwise address the applicant’s work-related duties, skills and abilities or vocational qualifications, other than speaking of the applicant’s intention to pursue a diploma in civil engineering,

34I find that the background information which Dr. Waxer outlined in his report does not provide adequate information to address the applicant’s eligibility for the post-104 week income replacement benefit. I have not been directed to any other evidence regarding the applicant’s education, training or experience as it relates to an income replacement benefit.

35In addition, the applicant has not produced any evidence of the extent and nature of his functional ability in the post-104 week period. He has not produced a functional abilities assessment or equivalent evidence, and all of the evidence from the applicant’s treating physicians is within the first two years of the accident.

36I find the applicant has not met his onus in demonstrating his eligibility for an income replacement benefit. The applicant has not presented necessary evidence of the essential tasks of his employment; of his education, training or experience; or of his relevant functional limitations. Accordingly, he is not entitled to an income replacement benefit.

The applicant is removed from the Minor Injury Guideline

37However, the applicant is removed from the Minor Injury Guideline.

38Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the Minor Injury Guideline. 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.” An insured may be removed from the limits of the Minor Injury Guideline if it is established that the accident-related injuries fall outside of the Minor Injury Guideline because of a pre-existing medical condition, an accident-related psychological injury or an accident-related chronic pain condition. The burden of proof lies with the applicant.

39The initial disability certificate (OCF-3) completed by chiropractor Dr. Dustin Yen on October 14, 2020 described the applicant’s injuries as a sprain and strain of the cervical and thoracic spine, sacroiliac joint, shoulder joint, rotator cuff capsule, and hip; dislocation, sprain and strain of joints and ligaments of the lumbar spine and pelvis; muscle strain; headache; dizziness; malaise and fatigue; other sleep disorders; state of emotional shock and stress; and abnormal posture. I find that the applicant’s physical injuries come within the Minor Injury Guideline.

40However, the applicant submits that other factors take his accident-related injuries are beyond the confines of the Minor Injury Guideline. The respondent submits that the applicant has not provided reliable evidence to show that his injuries warrant removal from Guideline.

41The applicant relies on the evidence of two of the applicant’s treating physicians: Dr. Sethi and Dr. Harmanjit Sandhu. Dr. Sandhu is a family physician specializing in pain management who treated the applicant’s pain condition from November 2021 to January 2022.

42The respondent has submitted that Dr. Sethi’s evidence does not present the complete picture of the applicant’s condition, pointing to a gap of several months in Dr. Sethi’s chart during which the applicant did not contact her clinic: specifically from January 23 until August 4, 2021. Dr. Sethi explained in her testimony that the applicant was a walk-in patient and that at her clinic, return visits were not expected or scheduled as in a family practice. As there could be multiple explanations as to why the applicant did not contact the walk-in clinic during this period, I am not prepared to draw an adverse inference based on this gap.

43Even with this gap in treatment from the walk-in clinic, I find that Dr. Sethi’s medical chart demonstrates that the applicant suffered ongoing accident-related pain. In the first few months post-accident Dr. Sethi’s medical charts documented neck pain; headaches; chest, shoulder and back pain; and confirmed some physical limitation: identifying tenderness, hyperextension concerns and limits in flexion. There are continued notations of prescriptions for anti-inflammatories and muscle relaxants While not noted in her medical chart, she testified that the applicant was limited in lifting and carrying things. From October 2021 onward, Dr. Sethi’s charting for the applicant included chronic lumbar sprain. Dr. Sethi charted chronic back pain together with continuing pain medication prescriptions, recommendations for physical treatment and pain clinic treatment through to her last chart entry in 2022. Dr. Sethi testified that she also needed to add other medication as the applicant’s steady use of the pain-related medication was harming his stomach. Her chart also shows that at about one-year post-accident, the applicant had a rash from using a back support.

44Dr. Sethi testified that in August 2021, when the applicant was continuing to experience pain and require continued medication 10 months post-accident, she referred him to Dr. Sandhu a pain specialist for further assessment and treatment. I have not been directed to any evidence to suggest that the applicant's condition in 2021 is attributable to anything other than the October 2020 accident.

45I accept Dr. Sandhu’s determination that the applicant has accident-related post-traumatic pain syndrome, requiring treatment for pain. I am satisfied that he is qualified to make this assessment of post-traumatic pain syndrome. Dr. Sandhu’s professional regulatory body, the College of Physicians and Surgeons of Ontario, has approved “Interventional Chronic Pain Management” as being within his scope of practice. He practices exclusively in this area, has undergone a pain management practice assessment by his regulatory college, and attained “General Diplomate” and “Advanced Diplomate” designations with the American Academy of Pain Management. He described his approach as a multidisciplinary one in which he seeks to determine all inputs to pain presentation and devise a treatment plan to address care.

46With regard to his assessment of the applicant, Dr. Sandhu had an initial 39 minute telephone consultation with the applicant on September 27, 2021. This was followed by the first in-person examination on November 4, 2021 in which, amongst other things, he documented limitations in the applicant’s range of motion of the lumbar spine. In his treatment of the applicant, he administered nerve-block treatments, which were near weekly and accompanied by monitoring and reassessments. Dr. Sandhu’s chart documented ongoing assessments and treatments, ten in total, which continued through January 6, 2022. The treatments stopped at the point as the applicant left for Jamaica. To address his pain-related condition, Dr. Sandhu also advised the applicant to have regular sessions of physical therapy, including carrying out recommended exercises.

47I find that the evidence of the applicant’s continuing pain condition as determined and treated by Dr. Sandhu, is consistent with the testimony and medical chart of Dr. Sethi.

48I find that the applicant has met his onus in showing on the balance of probabilities that he has an accident-related chronic pain condition warranting removal from the Minor Injury Guideline.

49To receive payment for a treatment plan under 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.

50Both parties provided general submissions in relation to the applicant’s entitlement to the treatment plans. The applicant submits that the plans address the applicant’s barriers to recovery and his need for treatment and are supported by the evidence. The respondent took the position that the applicant has not met his onus to demonstrate that the plans sought are reasonable and necessary.

51I find that the applicant is entitled to the plans for physical treatment, a psychological assessment and a chronic pain assessment but not to the plans for psychotherapy services, a cognitive assessment, a neurological assessment, and a neuropsychological assessment. The plans are addressed below.

Physical rehabilitation treatment plan dated October 14, 2020

Physical rehabilitation treatment plan dated January 6, 2021

Physical rehabilitation treatment plan dated February 1, 2021

Physical rehabilitation treatment plan dated April 6, 2021

52I find that the amounts claimed in relation to the following plans, proposed by chiropractor, Dr. Yen, are reasonable and necessary and payable once incurred:

(i) $3,481.02 (partially approved up to $2,200)set out in the plan dated October 14, 2020 as proposed by chiropractor, Dr. Yen, for physical rehabilitation treatment, acupuncture, massage therapy, gel packs, a back support, a TENS Unit, motion medicine, a cervical pillow and transportation.

(ii) $1,135.06 as set out in the plan dated January 6, 2021, proposed by Dr. Yen for physical rehabilitation treatment, acupuncture, massage therapy, and exercise equipment.

(iii) $2,662.67 claimed in relation to the plan for $3,130.77, dated February 1, 2021, proposed by Dr. Yen for a physical rehabilitation treatment (including active and passive modalities), TENS unit accessories, massage therapy and acupuncture.

(iv) $2,136.37 claimed in relation to the plan for $3,097.88, dated April 6, 2021, proposed by Dr. Yen for physical rehabilitation treatment (including active and passive modalities), TENS unit accessories, massage therapy and acupuncture.

53The above plans were denied during the time that the applicant was within the limits of the Minor Injury Guideline. The applicant is now removed from the Guideline. The objectives of the above plans include pain reduction, increasing strength and range of motion. I find that the proposed treatments are consistent with the accident-based injuries as well as the assessments and evidence of both Dr. Sethi and Dr. Sandhu.

54Dr. Sethi’s medical chart supports that the applicant benefitted from physical treatment: specifically, during the time when the applicant was seen by Dr. Sethi and receiving physical rehabilitation treatment, Dr. Sethi charted improvement in the applicant’s condition (most specifically on January 15 and January 22, 202). When Dr. Sethi next saw him on August 4, 2021, he was no longer receiving physical treatment and he was reporting significant lower back pain as well as shoulder pain. She again recommended that he receive physical treatment, as well as referring him from pain treatment.

55Dr. Sandhu’s clinical charts monitored the applicant’s pain condition over the course of 10 treatment sessions. Upon completing a physical examination of November 4, 2021, Dr. Sandhu charted restrictions in range of motion and pain based issues. In conjunction with his nerve-block treatment, Dr. Sandhu also recommended that the applicant receive regular sessions of physical therapy as well as completing any recommended exercises.

56Given the applicant’s injuries, the recommendations of two treating physicians, evidence of improvement from physical treatment, and the timeframes involved, I find that the four treatment plans spanning October 14, 2020 to April 6, 2021 are reasonable and necessary, and payable once incurred.

Psychological assessment plan dated November 9, 2020

57I find that $2,460.00 for a psychological assessment as proposed by psychologist Dr. Grinberg in a plan dated November 9, 2020, is reasonable and necessary, and payable once incurred.

58In proposing the plan for a psychological assessment, Dr. Grinberg stated that in response to a series of questions put to the applicant in a screening interview on November 6, 2020, post-accident concerns were reported by the applicant. Such concerns can be summarized as including sleep issues including awakening three to four times per night; nightmares and flashbacks; fatigue and low energy, memory and concentration difficulties; sadness, depressive symptomatology, isolation and social withdrawal; lack of motivation; intrusive thoughts and ruminations; irritability and frustrations; stopping driving because of dizziness and forgetting he is driving; and passenger anxiety.

59Dr. Sethi’s chart entry from her appointment with the applicant the day following the accident (and within one month of the proposal for a psychological assessment) documented the applicant as having reported altered sleep, nervousness and flashbacks.

60I find that information provided by the applicant at the November 6, 2020 screening interview is corroborated by Dr. Sethi’s chart entries immediately post accident and supports the need for a psychological assessment at that time.

61Accordingly, I find that the plan proposed in November 2020 for a psychological assessment was reasonable and necessary given the information available at that time. The plan is payable once incurred.

Chronic pain assessment plan dated August 26, 2021

62I find that the applicant is entitled to $2,460.00 for a chronic pain assessment proposed by Dr. Karmy, physician, in a plan dated August 26, 2021.

63At the hearing, Dr. Sethi testified that when the applicant’s pain issues continued at a level of severity requiring ongoing medication at the 10-month mark, she referred him to a chronic pain specialist. Dr. Sandhu’s testimony and clinical records show that he was able to first meet with the applicant on September 27, 2021 and after his examination and assessment, the applicant was managed for chronic pain with near-weekly nerve-block treatment from September 27, 2021 until he left the country in January 2022.

64I am satisfied that the preponderance of the evidence before me shows that Dr. Karmy’s proposal of August 26, 2021 for a chronic pain assessment is reasonable and necessary and that the applicant is entitled to the $2,460.00 amount of the plan, once incurred.

Psychotherapy services plan dated April 20, 2021

Cognitive assessment plan dated April 20, 2021

Neurological assessment plan dated April 20, 2021

Neuropsychological assessment plan dated August 26, 2021

65The applicant is not entitled to:

i. $2,210.00 for psychotherapy services proposed by social worker Ms. Manoharan in a plan dated April 20, 2021.

ii. $2,460.00 for a cognitive assessment proposed by occupational therapist, Mr. Zakrzewski in a plan dated April 20, 2021.

iii. $2,460.00 for a neurological assessment proposed by chiropractor Dr. Nikols/physician Dr. Basile in a plan dated April 20, 2021.

iv. $2,460.00 for neuropsychological assessment proposed by psychologist Dr. Gladshteyn in a plan dated August 26, 2021.

66All of these plans rely on the section 25 psychological assessment of Dr. Waxer. He met with the applicant on a video conference platform on March 9, 2021 and based on a clinical interview and psychometric tests, Dr. Waxer arrived at a DSM-V diagnosis for the applicant as follows: Specific Phobia: Vehicular; Persistent Somatic Symptom Disorder with Predominant Pain; and, Severe; Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.

67For the reasons that follow, I find that the applicant has not shown that the above plans are reasonable and necessary. While a report such as Dr. Waxer’s could in many circumstances be compelling evidence of a need for the treatment and assessments sought, I do not find this to be the case here.

68The respondent submits that Dr. Waxer misunderstood the severity of the collision, pointing out that Dr. Waxer relied on the applicant’s description of the accident as causing him to lose consciousness for five to ten minutes on impact. While Dr. Waxer did not testify and there is no evidence as to the extent to which this might have affected his assessment, I recognize that Dr. Waxer’s appreciation of the severity of the accident differs from the applicant’s report of no loss of consciousness as documented by Dr. Sethi on the day following the accident.

69The applicant submits that there is other evidence supporting the need for the above plans, specifically referencing post-accident documentation about the applicant being nervous, shaky and having flashbacks.

70While there is such documentation, I find that it is not sufficient to support an ongoing condition. As discussed earlier, a screening interview at an assessment centre on November 6, 2020 included symptomatology such as dizziness, flashbacks, sleep issues, mood issues, and driving concerns. However this screening interview was within a month of the accident and such symptoms do not appear in the continuing medical evidence of the applicant’s treating physicians.

71The references of being nervous, shaky and having flashbacks are noted Dr. Sethi’s chart from the applicant’s reports the day immediately after the accident. Such symptoms are not referenced again in the walk-in clinic chart despite a dozen subsequent contacts, commencing with an in-person assessment on October 13, 2020 through to the applicant’s last contact with the clinic in 2022.

72To the extent that dizziness, sleep issues and headaches are relevant to the above-noted treatment plans, there is no notation of dizziness in Dr. Sethi’s chart after November 6, 2020. The last notation of headaches or sleep issues in Dr. Sethi’s chart was January 22, 2021. While the medical chart shows that Dr. Sethi continued to document the applicant’s physical and pain concerns and that she recommended physiotherapy and pain treatment in 2022 to address the applicant’s continued accident concerns, there are, no notations in her medical chart of mood issues, driving fears, counseling, or any consideration of neurological, psychiatric, or psychotherapy referrals.

73I also find that Dr. Sandhu’s treating records as filed in evidence do not provide adequate support for psychotherapy treatment, or cognitive, neurological and neuropsychological assessments. In his testimony, Dr. Sandhu described his pain management approach as a multidisciplinary one, in which he seeks to determine all inputs to pain presentation and devise a treatment plan. Despite the breadth of his approach, his charted treatment plan for the applicant was limited to nerve-block injections with the recommendation that the applicant pursue regular sessions of physical therapy and exercise.

74Specifically, Dr. Sandhu testified that as part of his pain management practice he was qualified to diagnose somatic symptom disorder. Although this was a diagnosis ascribed to the applicant by Dr. Waxer in March 2021, Dr. Sandhu did not identify indications of any such disorder during the time that he was treating him for traumatic chronic pain syndrome.

75Dr. Sandhu testified that issues of self-worth and feeling useless is common in post-traumatic pain situations especially with young people, and that the applicant was experiencing these symptoms. However, it does not appear that such symptoms rose to the level of any clinical concern or warranted further investigation. There was no notation of such concerns in Dr. Sandhu’s chart. An initial consultation letter was identified in the chart but not included in hearing evidence.

76Dr. Sandhu testified that adding psychiatric care, counselling, and/or cognitive behavioural therapy to physical treatment was optimal for chronic pain conditions. However, I do not place significant weight on this in determining the necessity of the plans at issue. Dr. Sandhu’s medical chart does not show that he had recommended this to the applicant during the time that he was providing treatment, even though he did recommend regular sessions of physical therapy.

77During the course of the 10 treatment/assessment sessions, Dr. Sandhu’s medical chart does not indicate that any psychological, cognitive or neurological concerns were identified for any further investigations or referrals.

78I find that neither Dr. Sethi’s or Dr. Sandhu’s evidence provides meaningful support for Dr. Waxer’s report or that their evidence otherwise provides support for the plans at issue. The applicant called no witnesses other than Dr. Sethi and Dr. Sandhu, despite only half of the four pre-scheduled hearing days being used.

79I find that the applicant has not met his onus of demonstrating that the plans proposed from April through August 2021 for psychotherapy treatment and for cognitive, neurological and neuropsychological assessments, are reasonable and necessary.

INTEREST

80Interest applies on the payment of overdue benefits pursuant to section 51 of the Schedule.

AWARD

81While the applicant had sought an award under section 10 of Reg. 664, the applicant has not produced particulars for the award claim as ordered at the Case Conference. Accordingly, an award is not ordered.

ORDER

82I order as follows:

1. The applicant is not entitled to an income replacement benefit.

2. The applicant is removed from the Minor Injury Guideline.

3. The applicant is entitled to payment of all amounts once incurred of the following:

(i) The plan for physical rehabilitation services, up to its total amount of $3,481.02, proposed by chiropractor Dr. Yen, dated October 14, 2020.

(ii) The plan for $1,135.06 for physical rehabilitation services proposed by chiropractor Dr. Yen, dated January 07, 2021.

(iii) The plan for physical rehabilitation services, $2,662.67 claimed, proposed by chiropractor Dr. Yen, dated February 1, 2021.

(iv) The plan for physical rehabilitation services, $2,136.37 claimed, proposed by chiropractor Dr. Yen, dated April 06, 2021.

(v) The plan for a psychological assessment, for $2,460.00 proposed by psychologist Dr. Grinberg, dated November 16, 2020.

(vi) The plan for a chronic pain assessment, for $2,460.00 proposed by physician Dr. Karmy, dated August 26, 2021.

4. The applicant is not entitled to the following:

(i) The plan for psychotherapy services for $2,210.00 dated April 26, 2021.

(ii) The plan for $2,460.00 for a cognitive assessment dated April 26, 2021.

(iii) The plan for a neurological assessment for $2,460.00 dated April 26, 2021.

(iv) The plan for a neuropsychological assessment for 2,460.00 dated August 26, 2021.

5. The applicant is entitled to interest on the payment of overdue benefits pursuant to section 51 of the Schedule.

6. The applicant is not entitled to an award.