Harding v. TD Insurance Meloche Monnex, 2023 CanLII 13072

Citation: Harding v. TD Insurance Meloche Monnex, 2023 ONLAT 20-015172/AABS

Licence Appeal Tribunal File Number: 20-015172/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:

Ashley Harding

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Meleni David, Counsel

For the Respondent: Nassim Rahimi, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant, Ashley Harding ("A.H."), was injured in an automobile accident on October 23, 2018, and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). A.H. was denied further treatment on the basis that TD determined she suffered predominantly minor injures that are treatable within the Minor Injury Guideline (the "MIG"). A.H. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues to be decided in this hearing are:

a. Are A.H.'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?

b. Is A.H. entitled to a non-earner benefit ("NEB") of $185.00 per week from November 23, 2018 to October 23, 2020?

c. Is the medical benefit in the amount of $3,042.64 for psychological services, proposed by Dr. Gronkowska in a treatment plan (OCF-18) dated January 22, 2019, reasonable and necessary?

d. Is the cost of examination expense in the amount of $2,200.00 for a neurological assessment, proposed by Dr. Nayya in an OCF-18 dated December 16, 2019, reasonable and necessary?

e. Is the cost of examination expense in the amount of $2,213.99 for a psychological assessment, proposed by Dr. Aghamohseni in an OCF-18 dated January 12, 2020, reasonable and necessary?

f. Is A.H. entitled to interest on any overdue payment of benefits?

RESULT

3A.H. has demonstrated that her accident-related impairments require removal from the MIG.

4A.H. is entitled to funding for the cost of examination expenses for the neurological and psychological assessments. Interest is payable in accordance with s. 51.

5A.H. has not demonstrated that she suffers a complete inability to carry on a normal life and is therefore not entitled to a NEB.

6A.H. is not entitled to the OCF-18 for psychological treatment, as she has not established that it is reasonable and necessary.

ANALYSIS

Did A.H. suffer predominantly minor injuries?

7Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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." In order to be removed from the MIG, an insured must establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.

8A.H. has demonstrated that her accident-related injuries and impairments require treatment beyond the MIG. Her submissions largely focus on a discussion of concussion-based symptomatology and psychological impairments, which I find supports removal from the MIG.

9In this regard, A.H. relies on the clinical notes and records ("CNRs") of her family physician, Dr. Bernston, who noted strains of the cervical, lumbar and thoracic spine, sprains and strains of the elbow, ankle, wrist, shoulder joint, impingement of shoulder muscle strain, residual post-concussive symptoms of photophobia to bright light, headache, foggy memory and vertigo. She also relies on the CNRs of Scarborough Physiotherapy, where she has received treatment. Additionally, she relies on a January 31, 2019 psychological report from Dr. Gronkowska, who diagnosed her with major depressive disorder of moderate severity, post-traumatic stress disorder of moderate severity with driving anxiety, and somatic symptom disorder with predominant pain. She further relies on CNRs from neurologist Dr. Goldberg, who diagnosed her with concussive symptoms, tinnitus, headache, chronic morning discomfort, shoulder pain and left hip pain. Another neurology report, from neurology practitioner Ms. Johnson, diagnoses T.M. with chronic headache, mild traumatic brain injury, post-concussion syndrome, post-traumatic vestibulopathy, and post-traumatic vision syndrome. In addition, A.H. relies on a May 31, 2020 neurology report from Dr. Mehdiratta (concluding that but for the accident, A.H. would not have suffered her current impairments). Lastly, she relies on a November 12, 2018 Disability Certificate (OCF-3).

10In response, TD argues that the following evidence that A.H. relies on supports that she suffered predominantly minor injuries. For example:

a. The OCF-3 indicates that she sustained sprain and strain of the cervical, thoracic and lumbar spine, elbow, ankle, wrist, shoulder joint, post-traumatic headache, concussion, vertigo, other amnesia, other and unspecified symptoms and signs involving cognitive functions and awareness, decreased concentration, chest pain and impingement syndrome of shoulder;

b. At the initial visit to her family physician, Dr. Bernston confirmed that she sustained soft tissue injuries (October 25, 2018). Subsequent post-accident visits note normal range of motion, with minimal pain. No mention of accident until May 26, 2020, which notes that she recently changed lawyers a month prior and her new lawyer wants her to go to a concussion and pain clinic;

c. At an initial assessment at Scarborough Physiotherapy on November 12, 2018, it is noted that she had shoulder, neck, upper back, lower back, left hip, chest, wrist and elbow pain, similar to the list of injuries noted in the OCF-3;

d. May 31, 2020 – iScope Concussion and Pain Clinic report from Ms. Johnson indicated that A.H. was diagnosed with a concussion from Markham Stouffville Hospital, however, the Hospital records do not contain a concussion diagnosis;

e. There is no evidence that A.H. has received any psychological treatment or has been prescribed a course of pharmacological treatment for same.

11It further relies on s. 44 initial and addendum general practitioner, initial and addendum psychology, initial and addendum neurology reports, and an occupational therapy in-home report that were prepared to address the NEB and the claims for the OCF-18s. TD's position is that in addition to her being in the MIG, A.H. has not demonstrated a complete inability to carry on a normal life or that the disputed OCF-18s are reasonable and necessary.

12I agree with A.H. Her physical injuries may fall within the definition of a minor injury under s. 3, as they are predominantly sprain and strain-type injuries for which she received physiotherapy. However, the concussion symptoms and psychological diagnoses are not captured within the MIG, and therefore, investigation into the extent of same is reasonable.

13Her medical evidence has several notations about the impact of concussion-based symptoms, namely bright light sensitivity, headaches, post-traumatic headaches, post-traumatic vision problems. Further, Dr. Mehdiratta, neurologist, noted that A.H. suffered an alteration in mental state at the time of the injury and physical symptoms (as noted in the Ontario Neurotrauma Foundation Guideline for Concussion/Mild Traumatic Brain Injury & Persistent Symptoms – Third Edition (2018) such as, dizziness, problems with concentration and memory, mood and sleep disturbance, and chronic migraines.

14I find Dr. Mehdiratta's report persuasive, as he specializes in concussion and traumatic brain injury research. Dr. Mehdiratta opined that the noted factors are "important neurotrauma indicators supporting a diagnosis of concussion." Dr. Mehdiratta went on to note that, "on a balance of medical probabilities, the accident caused a sufficient force with which to cause a mild traumatic brain injury through axonal disruption." His opinion was based on the findings that the force that the brain moves within the skull during an acceleration-deceleration injury can cause axonal disruption resulting in concussive symptoms, even in the absence of direct contact.

15Accordingly, A.H. is removed from the MIG as a result of her concussion-related and psychological impairments.

Are the assessments reasonable and necessary?

16The goals of the neurological assessment are to investigate the ongoing pain symptoms that A.H. is experiencing as a result of the accident. Further, the assessment is recommended to determine if the patient is a candidate for a chronic pain program, to determine entitlement to the benefit, and to provide future medical direction. I find that A.H. has established that the OCF-18 for a neurological assessment is reasonable and necessary.

17Given the medical documentation in support of the neurological assessment, namely, the s. 25 reports that were discussed earlier and her self-reporting to the s. 25 and s. 44 assessors about her ongoing pain issues, I find these to be reasonable grounds to warrant further investigation into her post-accident pain complaints. Additionally, I find the goals of the assessment to be reasonable, specifically, determining the severity of her ongoing accident-related pain symptoms. I also agree with Dr. Mehdiratta, that these are not symptoms she was experiencing prior to the accident, and there is no evidence that she would experience similar symptoms had the accident not taken place. While Dr. Yahmad did not conclude that the cervicogenic headaches were neurological, TD still enlisted the expertise of a neurologist to confirm same. I see no reason to not allow A.H. to also seek her own expert opinions.

18For these reasons, I find that A.H. has established that the OCF-18 for a neurological assessment is reasonable and necessary.

19The goals identified in the OCF-18 for the psychological assessment were to return A.H. to her pre-accident level of driving ability and comfort, and to return her to her activities of normal living.

20I find her medical evidence persuasive regarding her psychological impairments as a result of the accident. She consistently reported that her various teaching jobs have been impacted by her impairments, in that she finds herself becoming short-tempered and irritable with the children, where these symptoms did not exist pre-accident. Further, she has reported to her family physician, treatment providers and assessors that she has experienced various episodes of memory loss and forgetfulness, in addition to cervicogenic headaches. These complaints were also acknowledged by the s. 44 assessor, neurologist, Dr. Yahmad.

21I note that the OCF-18 indicates she has returned to full-time employment. However, I find that an assessment to determine whether she still suffers from ongoing accident-related psychological impairment is reasonable, given her reporting on her level of irritability as it relates to her employment. The medical documentation supports that there is ongoing concerns about her mental well-being as it relates to memory and temper, which I find are justifiable grounds to determine to what extent these post-accident impairments are continuing to affect her well-being.

Is the OCF-18 dated January 22, 2019 reasonable and necessary?

22A.H. bears the onus to establish that the disputed OCF-18s are reasonable and necessary, pursuant to sections 14 and 15 of the Schedule. A.H. has not established that the January 22, 2019 OCF-18 for psychological services is reasonable and necessary for the reasons that follow.

23The OCF-18 completed by Dr. Gronkowska, recommended 10 x 1.5-hour treatment sessions, with a goal of providing psychological counselling for mental health disorder, including mindfulness psychotherapy. The anticipated outcome was a return to activities of normal living.

24While I appreciate that she is entitled to an assessment to determine the extent of her injuries, I am not persuaded that the January 22, 2019 OCF-18, which was submitted approximately one year prior to the psychological assessment (January 12, 2020), is reasonable and necessary. It is a situation of putting "the cart before the horse". It stands to reason that the psychological assessment be conducted prior to a recommendation for psychological treatment. The purpose of the assessment is to determine the extent of, and the appropriate level of treatment for, any accident-related psychological impairments.

25There is little by way of evidence that A.H. required, received or was referred to a specialist in order to receive psychological treatment. Further, as noted earlier, there is no evidence that she was prescribed any medication to treat same. While an assessment to determine the extent of her psychological symptomatology is reasonable and necessary, this does not automatically guarantee treatment for same will be reasonable and necessary. A.H. must still satisfy her onus that each claimed OCF-18 is reasonable and necessary. I find it difficult to approve recommended psychological treatment before an assessment to determine the extent of psychological impairment has taken place.

26For these reasons, I find that A.H. has not, on a balance of probabilities, established that the OCF-18 for psychological treatment is reasonable and necessary. I find that the OCF-18 for psychological treatment is not reasonable and necessary.

Is A.H. entitled to a NEB?

27A.H. has not demonstrated a complete inability to carry on a normal life as a result of the accident.

28According to s. 12 of the Schedule, an insurer shall pay a NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. Sections 12(3) (a) and (c) further set out that the insurer is not required to pay a NEB for the first four weeks after the onset of the disability and for any period more than 104 weeks after the accident.

29Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 ("Heath") provides the framework for the NEB analysis into whether an insured person suffers a complete inability to carry on a normal life. Heath requires a comparison of activities and circumstances pre-and post-accident over a reasonable period of time, allowing for greater weight to be assigned to activities that an insured person identifies as important. In addition, where pain is present, it should practically prevent them from engaging in those activities.

30A.H.'s comparison of her pre- and post-accident activities does not meet the requirements of the strict NEB test. On the evidence, I find that A.H. is not entitled to a NEB for the period in dispute as she has not demonstrated that suffers a complete inability to carry on a normal life as a result of the accident. Her submissions do not engage the Heath test, and there is no objective medical evidence that supports that she suffers a complete inability to carry on a normal life as a result of the accident.

31In this regard, A.H. worked as a supply teacher with the Toronto District School Board ("TDSB") and York Region School Board. She was also an English as a Second Language Line Instructor with the Durham District School Board. There is no evidence that A.H. missed any time from work due to her accident-related injuries. The TDSB employment file notes that she was available to accept daily assignments. In addition, the January 12, 2020 OCF-18 indicated that A.H. resumed full-time employment, which is during the period that she is claiming entitlement to a NEB.

32Further, the records of iScope note that A.H. reported to be able to complete the majority of her pre-accident housekeeping tasks and is independent with her self-care. She also reported returning to recreational and social activities and that she continues to engage with friends and family.

33I agree with TD that A.H. has not demonstrated that her post-accident life changes have resulted in her continuously being prevented from engaging in substantially all of her pre-accident activities, or that she suffers from significant functional limitation that impacts her performance. Lastly, her submissions fail to address the NEB issue, and although she was given the opportunity to address or refute TD's position on reply, she chose not to.

34The Tribunal has been clear that it is not an acceptable practice for a party to expect the Tribunal to piece together arguments and/or documents in order to establish the evidentiary basis for their case.

35Therefore, I am unable to make a finding that she suffered a complete inability to carry on a normal life as a result of the accident. Due to the lack of objective medical evidence, her reported high level of functionality in her activities of daily living and employment, and the fact she did not miss any time off work, I see no reason to interfere with TD's determination.

ORDER

36A.H. has demonstrated that her accident-related impairments require treatment beyond the MIG due to her concussion symptoms and psychological impairments.

37Accordingly, A.H. is entitled to funding for the OCF-18s for a neurological assessment and psychological assessment. Interest is payable in accordance with s. 51 of the Schedule.

38A.H. has not demonstrated that the OCF-18 for psychological treatment is reasonable and necessary.

39A.H. has failed to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident. She is not entitled to a NEB.