Citation: Mak v. Economical Mutual Insurance Company, 2023 ONLAT 21-000281/AABS

Licence Appeal Tribunal File Number: 21-000281/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:

Suet Man Mak

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Hussein Pirani, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Suet Man Mak, the applicant, was involved in an automobile accident on April 6, 2019, 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 Mutual Insurance Company 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 Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan (“OCF-18”) dated March 4, 2020?

iii. Is the applicant entitled to $4,654.52 for physiotherapy services, proposed by Total Recovery Rehab Centre in an OCF-18 dated September 17, 2019?

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

RESULT

3I find that the applicant’s psychological impairments are not a predominantly minor injury and she is not subject to treatment within the MIG.

4The applicant is entitled to payment for the OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule.

5The applicant is not entitled to payment for the OCF-18 for physiotherapy services, as she has not established that it is reasonable and necessary.

ANALYSIS

Minor Injury Guideline (“MIG”)

6Section 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. 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.”

7An insured may be removed from the MIG if they can 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 combined with compelling medical evidence stating that the condition precludes recovery if they are 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.

8The applicant submits that she should be removed from the MIG on the basis of her psychological impairment, chronic pain and pre-existing impairments.

The Applicant’s Psychological Impairments Warrant Removal from the MIG

9The applicant submits that as a result of the accident, she has sustained serious psychological impairments. To establish her claim, she relies on the clinical notes and records (“CNRs”) of her family physician Dr. Derek Ng, which she contends establish her Post-Traumatic Stress Disorder (“PTSD”), sleep difficulties and anxiety. The applicant further relies on a pre-screening report and psychological assessment conducted by Dr. Sharleen McDowell, who diagnosed the applicant with Major Depressive Disorder with Anxious Distress and Specific Phobia (Travel).

10The respondent contends that the applicant sustained only temporary mild emotional sequalae as a result of the accident. It relies on its own s. 44 assessment, where Dr. Rod Day found that the applicant did not meet the diagnostic criteria for a mood disorder or PTSD. The respondent further argues that the applicant’s s. 25 assessment should be given little weight, on the basis that the CNRs of the family physician were not reviewed and that the assessment was conducted by Ms. Mandy Fang, a social worker/psychotherapist as opposed to Dr. McDowall.

11Based on the evidence provided, I am satisfied that the applicant’s psychological impairments place her outside the treatment limits of the MIG.

12The applicant’s family physician noted soon after the accident that the applicant was reporting symptoms of PTSD and anxiety. The CNRs of Dr. Ng further indicate that the applicant reported a year later that she still was not sleeping well, and Dr. Ng queried whether she was suffering from PTSD. He discussed psychotherapy and medication with the applicant and advised her to follow up or attend at the emergency department if her symptoms worsened.

13The March 4, 2020 OCF-18 for psychological assessment included a pre-screening report. In this report, Dr. McDowell noted that the applicant was exhibiting symptoms including racing and intrusive thoughts, nightmares, difficulties sleeping, avoidance behaviour, and flashbacks. Dr. McDowell recommended a full psychological assessment. The respondent denied the OCF-18, but the applicant subsequently attended and incurred the assessment and a s. 25 report was issued on October 19, 2021.

14Although I agree with the respondent’s submissions that the s. 25 assessment was conducted by Mandy Fang, under the supervision of Dr. McDowell, I find that the diagnoses of Major Depressive Disorder with Anxious Distress and Specific Phobia Travel are consistent with the applicant’s ongoing reports of anxiety, difficulty sleeping, nightmares and fear of driving post-accident. I also note the applicant’s evidence that, around the time the report was issued, she independently sought psychological treatment outside of the accident benefits system.

15I further find it persuasive that the respondent’s own assessor found that the applicant was still exhibiting psychological symptoms and distress two years post-accident. Dr. Day noted that the applicant appeared fatigued and with a flat affect and that she reported “several difficulties consistent with a significant depressive experience”. With respect to PTSD symptoms, Dr. Day found that the accident did meet the necessary stressor criteria and that her scoring on the Personality Assessment Inventory indicated that she had experienced a disturbing traumatic event that continues to distress her and produce recurrent episodes of anxiety.

16Finally, Dr. Day also noted that the applicant did develop fear/avoidance of driving after the accident. Although Dr. Day concluded that the applicant did not meet the diagnostic criteria for a mood disorder or PTSD, I find that his various reports of psychological distress corroborate the findings of Ms. Fang and Dr. McDowell and the applicant’s ongoing reports of psychological impairments to Dr. Ng.

17Given the foregoing, I find that the applicant has adduced sufficient evidence to establish that she has sustained accident-related psychological impairments warranting removal from the MIG.

18As I have found that the applicant has been removed from the MIG on the basis of her psychological impairment, it is unnecessary for me to consider the additional grounds for removal of chronic pain and pre-existing impairment. However, the onus still rests with the applicant to establish that the proposed treatment plans are reasonable and necessary.

Are the Proposed Treatment Plans Reasonable and Necessary?

19Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

20The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

The OCF-18 for a Psychological Assessment is Reasonable and Necessary

21The applicant submitted an OCF-18 dated March 4, 2020 for a psychological assessment. In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.

22Given the evidence cited above, regarding the applicant’s diagnosis of Major Depressive Disorder with Anxious Distress and Specific Phobia Travel, the continuing psychological symptoms noted by the respondent’s IE assessor Dr. Day and the applicant’s reporting of PTSD and anxiety symptoms to Dr. Ng in the two years post-accident, I am satisfied that the applicant has provided objective grounds for a psychological assessment. As such, I find that the proposed OCF-18 for a psychological assessment is reasonable and necessary pursuant to the Schedule.

The OCF-18 for Physiotherapy Services is not Reasonable and Necessary

23The applicant submitted an OCF-18 dated September 17, 2019 for sixteen sessions of physiotherapy services. The applicant submits that the proposed treatment is reasonable and necessary to meet the stated goals of pain reduction, increased range of motion, increased strength and a return to activities of normal living. To establish her claim, the applicant relies on hospital records and CNR entries of Dr. Ng indicating that soon after the accident, she reported pain in her neck, shoulder and lower limbs. The applicant further submits treatment records from her physiotherapy clinic Total Recovery Rehab Centre.

24I find that the applicant has not established, on a balance of probabilities, that the physiotherapy treatment is reasonable and necessary.

25The applicant has provided limited objective medical evidence of a physical impairment necessitating the proposed treatment. Although the applicant’s physiotherapist, Mr. Afifi, diagnosed her with pain in the thoracic spine, strain and strain of the spine, shoulder and elbow, no similar diagnoses appear to have been provided by any treating physician. The hospital records indicate that immediately post-accident the applicant complained of pain to the back, left head and right calf. However, no diagnosis of a physical impairment was given at the hospital, no medication was prescribed for pain and no diagnostic imaging was ordered.

26The CNRs of Dr. Ng similarly do not establish a physical impairment or ongoing pain. The applicant reported neck, shoulder and lower limb pain to Dr. Ng ten days post-accident. However, he did not provide any diagnosis of an injury. The applicant does not direct me to any evidence that she reported accident-related pain or physical impairments to Dr. Ng after April 16, 2019 or that Dr. Ng had recommended that she attend at or continue with physiotherapy. The CNRs of Dr. Ng indicate ongoing complaints related to psychological symptoms, but not related to accident-related physical impairments or pain.

27Although the applicant relies on the records of Total Recovery Rehab Centre, I find that they are of limited assistance. The records indicate that the applicant attended at treatment sessions from April 9, 2019 to October 3, 2019, however, limited information is contained in the entries to indicate the applicant’s ongoing impairments or progress. For example, in the June 25, 2019 entry, two months before the OCF-18 was submitted, it is stated that the applicant “feels back to normal”. In other entries, she complained of pain, but due to a long hike or her sleeping position.

28Given the lack of contemporaneous medical evidence of a physical impairment or ongoing pain, I find that the applicant has not directed me to sufficient evidence that the proposed physiotherapy treatment is reasonable and necessary.

Interest

29The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the OCF-18 dated March 4, 2020 for the psychological assessment.

ORDER

30For the reasons outlined above, I find that:

i. The applicant has met her burden of proving on a balance of probabilities that her accident-related impairments warrant removal from the MIG on the basis of a psychological impairment;

ii. The applicant is entitled to the OCF-18 dated March 4, 2020 for a psychological assessment, plus interest in accordance with s.51 of the Schedule;

iii. The applicant is not entitled to the September 17, 2019 OCF-18 for physiotherapy treatment.