Licence Appeal Tribunal File Number: 20-015374/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:
Caroline Olatiregun
Applicant
and
Wawanesa Insurance
Respondent
DECISION
VICE-CHAIR: Christopher Climo
APPEARANCES:
For the Applicant: Lyle Miller, Counsel
For the Respondent: Jananie Manoharan, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Caroline Olatiregun, the applicant, was involved in an automobile accident on August 11, 2018 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, Wawanesa Insurance, 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
ii. Is the applicant entitled to a medical benefit in the amount of $1,996.02 for chiropractic services, denied April 12, 2019?
iii. Is the applicant entitled to a medical benefit in the amount of $2,480.00 for a chronic pain assessment, denied October 13, 2020?
iv. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, denied October 13, 2020?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has failed to demonstrate that a psychological impairment warrants removal from the MIG. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. The applicant remains within the MIG; however, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
ANALYSIS
The Minor Injury Guideline (“MIG”)
4I find that the applicant has not met her burden of proving a psychological impairment which warrants removal from the MIG.
5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
6An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
7The applicant submits that she should be removed from the MIG based on a psychological impairment. In support of this claim she relies upon a psychological assessment report from Dr. S. McDowall, Psychologist, dated November 17, 2020. Dr. McDowall concluded that the applicant met the criteria for Major Depressive Disorder with Anxious Distress based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5). The applicant also relies upon a conclusion that she was suffering from psychological issues by Dr. A. Kam, physician, in a chronic pain assessment dated May 14, 2021.
8I am not persuaded by the report of Dr. McDowall. I note several references to the applicant as a male and on page 2 a reference to a covid screening test that was given to a male patient which states his name. This report seems to mix up an examination given to the applicant with another individual, which lessens its credibility.
9My major reservation with the conclusion of Dr. McDowall is that the standard psychological tests completed by the applicant do not support a psychological impairment. The Beck Depression Inventory indicated minimal levels of depression and the Beck Anxiety Inventory also indicated minimal levels of anxiety. The Pain Patient Profile Assessment indicated below average scores for depression, anxiety and somatization. Despite the scores on these psychological tests, Dr. McDowall draws the conclusion that the applicant has a major depressive disorder based on self reporting and observation. To connect these two divergent views, Dr. McDowall concludes that the applicant was likely underreporting her symptomatology. As a result, I am not persuaded by Dr. McDowall that the applicant has a psychological impairment.
10The applicant also submits a chronic pain assessment by Dr. Kam dated May 14, 2021. The applicant does not seek removal from the MIG based on chronic pain, but rather submits that Dr. Kam diagnosed her with psychological issues as a result of the accident. I give no weight to this evidence as Dr. Kam did not diagnose the applicant with psychological issues. Rather, Dr. Kam stated that commenting on psychological issues is beyond the scope of her practice and she defers to appropriate practitioners.
11The respondent submits a Section 44 psychological assessment report completed by Dr. T. Dumitrascu, psychologist, dated October 30, 2018. At that examination, the applicant reported no changes in mood, no emotional problems, no excessive worries and an active social life. The results of the Beck Depression Inventory and the Beck Anxiety Inventory were minimal, which is consistent with the results of those same tests completed by Dr. McDowall almost two years later.
12The applicant appears to have provided differing self reports and presentation to the respective psychologists during the examinations. The results of the psychological tests were consistent in both cases. I also note that there are no references to psychological issues nor a referral to a specialist for assessment or treatment of psychological issues in the clinical notes and records of Dr. O. Ajisafe, family physician at any time post accident.
13Based on all the evidence before me, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of a psychological impairment. While there is chronic pain report in evidence, the applicant did not make submissions on chronic pain with a functional impairment as grounds for removal from the MIG and accordingly has not met the burden of proof for removal.
The Treatment Plans
14The submissions of the parties did not provide information on how much of the $3,500.00 MIG limit had been exhausted.
15As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
ORDER
16I find that:
i. The applicant has failed to demonstrate a psychological impairment that warrants removal from the MIG.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
Released: December 12, 2023
Christopher Climo
Vice-Chair