Licence Appeal Tribunal File Number: 20-000160/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:
Nicola Colica
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Kateryna Vlada, Paralegal
For the Respondent: Jennifer Sweitzer, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Nicola Colica (the "applicant") was involved in a motor vehicle accident on September 26, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Wawanesa Mutual Insurance Company (the "respondent") denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the resulting dispute.
2The applicant submits that he sustained physical and psychological injuries as a result of the accident causing emotional and behavioural changes that culminated in a severe psychological impairment. He is claiming entitlement to a non-earner benefit ("NEB"), chronic pain assessment and psychological therapy services treatment plans, and interest on these plans.
3The respondent contends that the applicant has not proven himself to meet the test for an NEB, nor has he proven that the two treatment plans in dispute are reasonable and necessary. Wawanesa further argues that the applicant's psychological impairments and sequelae are not the result of the accident, but are due to an unrelated medical condition.
ISSUES IN DISPUTE
4The following issues are in dispute:
Is the applicant entitled to an NEB in the amount of $185.00 per week from October 24, 2017 to October 24, 2019?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Princeton Hill Medical Assessment Centre, in a treatment plan/OCF-18 dated September 23, 2019?
Is the applicant entitled to $6,162.65 for psychological services, proposed by Princeton Hill Medical Assessment Centre, in a treatment plan/OCF-18 dated September 30, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
5The period sought for the NEB was noted in the Case Conference Report and Order ("CCRO") dated July 8, 2020 as "October 24, 2017 to date and ongoing." I have changed this to reflect submissions of both the applicant and the respondent, as well as the 104-week NEB limitation period set out in s. 12 of the Schedule.
6Issues #1, #3, #4, and #5 listed in the CCRO are noted as resolved in the applicant's submissions, and are not addressed in the respondent's submissions. As a result, they have been omitted here.
RESULT
7I find that:
i. The applicant is not entitled to an NEB, as he has not proven that he was suffering from a complete inability to carry on a normal life within 104 weeks of the accident, nor has he proven that his psychological impairments resulted from the accident.
ii. The applicant is entitled to $2,200.00 for a chronic pain assessment in a treatment plan/OCF-18 dated September 23, 2019, as he has proven this plan to be reasonable and necessary.
iii. The applicant is not entitled to $6,162.56 for psychological services in a treatment plan/OCF-18 dated September 30, 2019, as he has not proven this plan to be reasonable and necessary, nor has he proven that his psychological impairments are a result of the accident.
iv. The applicant is entitled to interest on all incurred overdue payments, pursuant to s. 51 of the Schedule.
ANALYSIS
The Non-Earner Benefit ("NEB")
Did the applicant suffer from a complete inability to carry on a normal life within 104 weeks of the accident?
8I find that the applicant is not entitled to an NEB. Primarily, he has not proven that he suffers from a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in accordance with s. 12(1)1 of the Schedule. He has also failed to demonstrate that his psychological impairments would not have occurred but for the accident.
9Section 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 an accident. Section 12(1)1 provides that the insured person must suffer 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 the NEB entitlement test in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which generally requires a comparison of the applicant's pre-accident and post-accident activities.
10A dispute over the timing and causality of the applicant's health challenges is at the heart of the NEB matter. The applicant claims that he suffered from a complete inability to carry on a normal life as a result of the accident, which played a role in the progression of cognitive impairments that eventually resulted in a diagnosis of Alzheimer's Disease in 2021. He relies on the clinical notes and records ("CNRs") of Dr. Robert Saito, family physician; a musculoskeletal pain report completed by Dr. Samuel Silverberg, internist, dated November 7, 2018; a psychological assessment report by Natalia Zhukova, registered psychotherapist, under the supervision of Erin Langis, psychologist, dated October 6, 2019; and a chronic pain report by Dr. Inese Robertus dated January 20, 2020.
11The respondent argues that the applicant's injuries as a result of the accident did not result in him being completely unable to carry on a normal life within 104 weeks of the accident. Moreover, Wawanesa also submits that the applicant fails the "but for" causation test, which holds that an applicant must establish that any impairment would not have occurred but for the accident (see: Sabadash v. State Farm et al., 2019 ONSC 1121 (Ont. Div. Ct.)). In this instance, the respondent cites medical evidence that the applicant's psychological issues and eventual dementia would have occurred regardless of the accident. Wawanesa relies on assessments from Dr. Ryan Williams, physiatrist, Dr. Paul Kelly, psychologist, and Elena Korman, occupational therapist, that are included in a multidisciplinary insurer's examination ("IE") report dated December 27, 2017. All conclude that the applicant did not suffer from a complete inability to carry on a normal life as a result of the accident.
12I am not persuaded by the medical evidence of the applicant.
13Both OCF-3s submitted to the insurer—the first dated October 11, 2017 and completed by Dr. Farhan Khandwalla, chiropractor, and the second dated September 18, 2019 and completed by Dr. Damnish Saini, chiropractor—note only that the applicant is suffering from the inability to carry on a normal life for an anticipated duration of 9-12 weeks. There is little here to indicate the potential for extended incapacity, as soft-tissue sprains and strains to the spine and shoulder are listed as the main injuries. Both OCF-3s also note psychological injuries and sequelae, although I assign these observations little weight as both forms were completed by chiropractors with no claimed psychological training.
14The CNRs of Dr. Saito, from October 3, 2017 until the end of 2019, cite the applicant's complaints of neck and back pain and list recommendations of Tylenol and physiotherapy, but they contain no indications that these symptoms prevented the applicant from continuing with his daily activities. On the contrary, the applicant reported to Dr. Saito during an appointment on July 19, 2019 that he had just returned from Italy. International travel, in my view, does not align with a complete inability to carry on a normal life, at least without a pressing reason (that is not present in the applicant's submissions). Additionally, the musculoskeletal pain report written by Dr. Silverberg is too reliant on the applicant's self-reporting, with little medical support for assertions such as the applicant claiming difficulties with housework post-accident. In all, there is little here that leads me to believe the applicant suffered a complete inability to carry on a normal life during the 104 weeks following the accident.
15In addition, the psychological assessment conducted by Ms. Zhukova on September 30, 2019 (which resulted in the aforementioned report dated October 6, 2019) omits crucial aspects of the applicant's medical history. I do not accept Ms. Zhukova's conclusion that the applicant sustained accident-related cognitive impairments because she does not mention that the applicant suffered from a precondition to dementia well in advance of the accident. The applicant was not entirely forthcoming with Ms. Zhukova, either, as he denied past psychological issues when he in fact complained to Dr. Saito about anxiety and insomnia on a number of occasions as early as 2014. Dr. Saito noted on October 7, 2014 that the applicant needed a referral to a psychologist. Most notably, Ms. Zhukova ascribes all of the applicant's cognitive difficulties to the accident, apparently unaware that a CT scan of the applicant dated May 13, 2016 revealed "bilateral brain calcifications including in the basal ganglia, white matter and dentate nuclei" that was "more than typical." The report states the possibility of Fahr Disease, an inherited neurological condition that can cause dementia and deterioration of motor function. Dr. Dubravka Dodig, neurologist, confirmed in a June 27, 2016 report that the applicant was hypocalcemic, a condition that the physician wrote could be associated with Parkinsonism or other movement disorders, as well as cognitive impairment and ataxia. A CT scan conducted on September 10, 2019, just a few weeks before this psychological assessment, also notes the presence of "significant bilateral, symmetric calcification."
16In my view, these exclusions undermine the conclusions of Ms. Zhukova's report. Clearly, Ms. Zhukova's assessments about the accident causing the applicant's cognitive difficulties could have been dramatically altered if she had known about and fully considered the above diagnostic imaging and diagnoses. With all that said, Ms. Zhukova also does not state that the applicant suffers from the complete inability to carry on a normal life. So, for both reasons noted above, her report does not adequately support the NEB claim.
17For similar reasons, I am not convinced by the chronic pain report of Dr. Robertus. The applicant was not completely truthful with this assessor, either, denying that he had any prior medical conditions, denying that he had been in earlier motor vehicle accidents when he was involved in one in 2014, and claiming that he experienced a bump on his head during the subject accident, which contradicts previous reports. Although Dr. Robertus diagnoses the applicant with chronic pain disorder, she also neglects to mention or is unaware of these crucial factors. And as with Ms. Zhukova, she does not write that the applicant suffers from the complete inability to carry on a normal life. The Dr. Robertus report is, at best, incomplete. It provides little evidence to support the NEB claim, at least in my opinion.
18Lastly, there is no indication in the applicant's medical evidence that his brain-calcification disorder would not have progressed to dementia but for the accident. Although the applicant's situation is a tragic one, he has not demonstrated that this disease is connected to the accident. Indeed, as noted above, the reports of Ms. Zhukova and Dr. Robertus do not mention the dementia concerns at all, either before the accident or after the accident. Also, the applicant did not show significant signs of dementia until April 19, 2020, when he was first hospitalized for delirium, which is more than two-and-a-half years after the accident and well after the 104-week period for an NEB according to the Schedule.
19I prefer the medical evidence of the respondent, which is thorough regarding the NEB test. The authors of three assessments included in a multidisciplinary insurer's examination ("IE") report dated December 27, 2017 agree that the applicant did not suffer from a complete inability to carry on a normal life. Dr. Williams found no objective evidence that the applicant suffered from a musculoskeletal impairment preventing him from engaging in daily activities. Dr. Williams also documented the applicant saying that he was independent with personal care, that he had returned to driving short distances, and that he had resumed socializing with friends at a coffee bar. Dr. Kelly diagnosed the applicant with "some psychological concerns" as a result of the subject accident, although he added that these were "in the normal range of emotional expression" and did not impair his normal activities. Ms. Korman arrived at similar conclusions. She wrote in her report that the applicant displayed a mostly normal range of motion, functional strength in all muscle groups, and showed no observable restrictions with respect to the activities of normal life.
20Taken as a whole, the above evidence forms a consistent picture that does not support the applicant's claim that his accident-related injuries caused an impairment that would meet the NEB test in the Schedule within 104 weeks of the accident. Further, although I acknowledge that the applicant has since experienced a significant, debilitating neurological illness, and I offer my sincerest sympathies to him and his family, the applicant has not provided sufficient evidence to demonstrate that this illness was caused or exacerbated by the accident.
21Accordingly, I find that the applicant has not proven that he suffers from a complete inability to carry on a normal life as a result of the accident. As a result, he is not entitled to an NEB.
Chronic Pain and Psychological Treatment Plans
Is the chronic pain assessment OCF-18 dated September 23, 2019 reasonable and necessary?
22I find that the applicant is entitled to the chronic pain assessment, as he has proven this treatment plan to be reasonable and necessary.
23To receive payment for an assessment plan under s. 15 and 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. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable. In addition, there must be a reasonable basis for requesting an assessment.
24Here, the applicant seeks payment for an OCF-18 dated September 23, 2019 in the amount of $2,200.00 recommending a chronic pain assessment. Dr. Robertus, who completed the OCF-18, noted that this assessment was necessary to help the applicant with ongoing "difficulty coping with his pain" and to address psychological sequelae such as anxiety and fear that were adding to the severity of his pain and degree of disability. In response, the respondent relied on an IE conducted more than a year earlier, dated June 4, 2018, by Dr. James Stewart, family physician, to deny this claim.
25Given the consistent reporting of chronic pain in the CNRs of Dr. Saito and Dr. Silverberg, in the records of the Appletree Medical Group, and in both the OCF-18 and the chronic pain assessment itself dated January 20, 2020 authored by Dr. Robertus, I find the chronic pain assessment necessary. It is clear from these documents that the applicant was experiencing persistent and worsening pain in his lower back, neck, and shoulders throughout 2018 and 2019. In my opinion, it was entirely reasonable to evaluate options for treatment and pain relief through a chronic pain assessment.
26Both the medical evidence and the argument relied upon by the respondent are unconvincing. The IE of Dr. Stewart was conducted more than 14 months before the date of the OCF-18 in dispute. It also focused on other treatment plans not in dispute here. As a result, I find the resulting report not entirely relevant here. The respondent bases much of its rationale for denying this plan by assessing the applicant against the six criteria found in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (the "Guides"). While the Guides are a useful interpretive tool to help determine if an individual is suffering from a chronic pain condition, its relevance is reduced in this case because I am not making such a determination. Instead, I am determining if it is reasonably possible that the applicant may have a chronic pain condition. It would be an absurd result to insist that an applicant prove the existence of a chronic pain condition as a precondition to determining that a chronic pain assessment could be reasonable and necessary.
27For the above reasons, I find the chronic pain assessment plan to be reasonable and necessary. The applicant's continued reporting of pain is regular and consistent for two years prior to the date of the OCF-18 in question, providing a solid foundation of evidence that makes this assessment a reasonable next step in his treatment. The applicant is entitled to the cost of the OCF-18 in dispute plus interest as incurred.
Is the psychological therapy OCF-18 dated September 30, 2019 reasonable and necessary?
28I find that the applicant is not entitled to the psychological therapy treatment plan, as he has not proven it to be reasonable and necessary. Nor has he proven that his psychological impairments are a result of the accident.
29As already noted above, to receive payment for a treatment plan under s. 15 and 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. Of particular importance here is the requirement that the treatment plan has to arise from an injury or impairment as a result of the accident.
30This OCF-18, dated September 30, 2019, recommends 12 sessions of individual psychological therapy along with treatment planning, progress reports, the cost of completing this form, a trauma workbook, communications with other treatment providers, transportation expenses, and interpretation services for a total amount of $6,162.65. The goals of this therapy are pain reduction and recovering from the trauma of the accident so that the applicant can return to a pre-accident level of psychological functioning. To support the reasonable and necessary nature of this plan, the applicant relies on the CNRs of Dr. Saito, the OCF-18 in dispute here, and the psychological assessment report administered by Ms. Zhukova dated October 6, 2019.
31The respondent denied this treatment plan on the basis of a psychological assessment IE report by Dr. Janet Clewes, psychologist, dated November 21, 2019, that concluded the applicant was not suffering from any accident-related DSM-5 diagnostic conditions and that no treatment was necessary at that time. This followed the same conclusions opinions expressed by Dr. Kelly in his multidisciplinary psychology IE report already described above.
32I agree with the respondent and find that the applicant has not provided sufficient medical evidence to prove that the psychological treatment plan is reasonable and necessary. I also agree with the respondent and find that the applicant has not met the "but for" causation test and established that his neurological illness would not have occurred but for the accident.
33The applicant's medical evidence is neither consistent nor conclusive when it comes to psychological matters. While the applicant reported feelings of confusion, experiencing "a phobia," and having trouble sleeping to Dr. Saito shortly after the accident in October and November 2017, these symptoms are barely touched on in the family doctor's CNRs. There are no details about this confusion and its cause, there is no explanation of the phobia, and the difficulty sleeping was actually first reported to Dr. Saito as early as 2014. In both May 2019 and August 2019, the applicant requested a CT scan of his head, claiming to have been experiencing confusion since the accident (this seems to have resulted in the CT scan dated September 10, 2019, which confirmed the presence of "significant bilateral, symmetric calcification" in the applicant's brain).
34However, these are only times that the applicant raised a potential psychological injury with Dr. Saito since the accident in 2017. The applicant also was not prescribed any psychological therapy or any sort of psychiatric medication during these two years. In my opinion, there is no consistent pattern of medical evidence demonstrating an accident-related psychological impairment that would make therapeutic treatment reasonable and necessary.
35In addition, I am persuaded by the causation argument from the respondent, which is well supported by the totality of the medical evidence. The May 13, 2016 CT scan showed that the applicant had significant brain calcifications that could lead to dementia long before the accident. Yet there is no evidence that this condition was worsened by the accident, or that the accident impacted on it at all. The Dr. Kelly psychological IE report written less than two months after the accident on November 20, 2017 features the applicant reporting that his cognitive function had been improving, and that even though he had some accident-related psychological concerns, he denied needing or wanting to receive any such treatment.
36Then, nearly two years later comes the October 6, 2019 Zhukova psychological assessment, which depicts an applicant with significant cognitive challenges. The timeline depicted here, at least in my view, depicts someone feeling well enough after the accident to refuse psychological treatment for a considerable amount of time, but then succumbs to the effects of an unrelated disorder that had been progressing for many years, not someone suffering from psychological impairments brought on or exacerbated by a car accident.
37It follows that I find the applicant has not proven that this psychological treatment plan in dispute is reasonable and necessary. He is not entitled to the value of this treatment plan, or interest.
ORDER
38I find that:
i. The applicant is not entitled to an NEB, as he has not proven that he was suffering from a complete inability to carry on a normal life within 104 weeks of the accident, nor has he proven that his psychological impairments are a result of the accident.
ii. The applicant is entitled to $2,200.00 for a chronic pain assessment in a treatment plan/OCF-18 dated September 23, 2019, as he has proven this plan to be reasonable and necessary, as well as interest on all incurred overdue payments pursuant to s. 51 of the Schedule.
iii. The applicant is not entitled to $6,162.56 for psychological services in a treatment plan/OCF-18 dated September 30, 2019, as he has not proven this plan to be reasonable and necessary, or that his psychological impairments are a result of the accident. Correspondingly, no interest is owing.
Released: April 19, 2023
Brett Todd
Vice-Chair