Ouellette v. Co-operators General Insurance Company, 2023 CanLII 40088

Citation: Ouellette v. Co-operators General Insurance Company, 2023 ONLAT 20-012541/AABS

Licence Appeal Tribunal File Number: 20-012541/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:

Jeffrey Ouellette Applicant

and

Co-operators General Insurance Company Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Sherilyn Pickering, Counsel

For the Respondent: Daniel Himelfarb, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Jeffrey Ouellette, the applicant, was involved in an automobile accident on November 12, 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, Co-operators General 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 predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for a psychological assessment, proposed by Fox Psychological Services in a treatment plan (“OCF-18”) dated September 29, 2020?

iii. Is the applicant entitled to a medical benefit in the amount of $2,145.13 for occupational therapy treatment, proposed by Rehab First in OCF-18 dated May 8, 2020?

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

v. Is the applicant entitled to an award under s. 10 of Reg. 664 because the respondent unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

i. The applicant’s injuries are not predominantly minor, and he should not be subject to the $3,500.00 limitation of the MIG.

ii. The applicant is entitled to the $2,200.00 for a psychological assessment proposed by Fox Psychological Services in OCF-18 dated September 29, 2020.

iii. The applicant is entitled to the $2,145.13 for an occupational therapy treatment proposed by Rehab First in OCF-18 dated May 8, 2020.

iv. The applicant is entitled to interest on any overdue payment of benefits.

v. The applicant is not entitled to an award.

ANALYSIS

The MIG

4Section 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.

5It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 MIG cap on a balance of probabilities. The applicant has only used $1,238.16 in medical benefits available to him under the MIG for treatment since the accident.

Did the applicant suffer predominately minor injuries?

6The applicant has demonstrated that his accident-related injuries and impairments require treatment beyond the MIG. His submissions largely focus on a discussion of physical impairments, psychological impairments and chronic pain, which I find supports removal from the MIG.

7The applicant relies on clinical notes and records (“CNRs”) of his family physician, Dr. Karen Sandhu, who diagnosed him with soft tissue injuries. To demonstrate psychological impairments, he relies on a January 13, 2021, psychological assessment from Dr. Philip Miller, clinical psychologist, who diagnosed him with an adjustment disorder with depressed mood, chronic of moderate severity, requiring therapeutic attention. That report was corroborated by the report of Dr. Paula Williams, chronic pain specialist and family physician, dated January 22, 2021, who diagnosed the applicant with somatic symptom disorder with predominant pain, post-traumatic stress symptoms in partial remission and driving phobia. Dr. Williams recommended that the applicant receive psychological counselling for his anxiety and driving phobia. To demonstrate chronic pain, the applicant relies on the CNRs of Dr. Sandhu and Dr. Anna Davenport, family physician, who opines that the applicant suffers from chronic pain, and Dr. Williams, who diagnosed the applicant with chronic pain disorder. This included chronic neck and shoulder pain, chronic myofascial pain with TMJ pain, probable functional thoracic outlet syndrome and low back pain with pseudo-radiculopathy. Lastly, the applicant relies on the results of a 2021 MRI and SPECT scan. The MRI was unremarkable, while the SPECT scan showed perfusion abnormalities on the anterior temporal lobes and interior frontal lobes. Dr. Yin-Hui Siow, radiologist, opined the findings showed a traumatic brain injury (“TBI”).

8In response, the respondent submits that the applicant suffered predominantly minor injuries. The respondent relies on the section 44 physiatry evaluation completed by Dr. Alfonse Marchie, physical medicine and rehabilitation specialist, who diagnosed the applicant with soft tissue injuries to the neck, bilateral shoulders, lumbar spine. Dr. Marchie found no indicator of any accident-related pathology explaining musculoskeletal pain symptoms.

9The respondent also takes issue with the findings of Dr. Williams as a family physician and chronic pain specialist, submitting that it should be afforded little weight in making a psychological diagnosis. The respondent also submits that there is no mention of psychological diagnoses in the applicant’s family physician CNRs. The respondent does not provide any expert reports to refute the findings of Dr. Miller’s psychological assessment.

10Both the applicant and the respondent reference the six criteria in the American Medical Association’s 6th Edition, Guidelines for Chronic Pain (“AMA Guides”), making opposing arguments. The applicant submits that he meets the AMA Guides criteria as he is dependent on treatment providers for relief, has withdrawn from social interactions and regularly misses work. The respondent submits that he has not withdrawn from social interactions having travelled with his wife to Florida, and has not produced work records indicating that he has missed work.

11I agree with the applicant. Although his physical injuries fall within the definition of minor injury under s. 3 as they are predominantly soft tissue, sprain and strain-type injuries as noted by Dr. Sandhu and Dr Marchie, I find the chronic pain and psychological diagnoses of the applicant are not captured within the MIG.

12I am persuaded by the chronic pain medical evidence presented by the applicant, notably the CNRs of Dr. Sandhu and Dr. Davenport, which have notations of chronic pain. These notations corroborate Dr. Williams’ diagnosis of chronic pain. The respondent has not submitted any evidence to refute the findings of the applicant’s chronic pain assessments. I am not persuaded by the respondent’s argument that the chronic pain findings of Dr. Sandhu, Dr. Davenport and Dr. Williams are inconsistent with the applicant’s high level of function.

13Instead, I am persuaded by Dr. Miller’s report diagnosing the applicant with an adjustment disorder, as he is a specialist in his field. I disagree with the respondent’s argument and find that even if I were to place little weight on Dr. William’s psychological finding, I am still persuaded by the diagnosis of Dr. Miller. Both independent medical findings of the applicant’s psychological impairments corroborate one another.

14Accordingly, the applicant is removed from the MIG as a result of chronic pain and psychological impairments.

The Treatment Plans

15The 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.

Psychological Assessment in the amount of $2,200.00

16I find that the applicant has established that the OCF-18 for a psychological assessment is reasonable and necessary.

17I found that the applicant suffers from psychological impairments based on the reports of both Dr. Miller and Dr. Williams. I find the diagnoses in these reports to be reasonable grounds to warrant further treatment and address the accident-related psychological difficulties through a full psychological assessment.

18For this reason, I find that the applicant has established that the OCF-18 for a psychological assessment is reasonable and necessary and the applicant is entitled to it in the amount of $2,200.00, as the cost is in line with s. 25 of the Schedule.

Occupational Therapy Treatment in the amount of $2,145.13

19I find that the OCF-18 dated May 8, 2020, in the amount of $2,145.13 for occupational therapy treatment is reasonable and necessary.

20The goal of the OCF-18 is pain reduction, a return to activities of normal living, and to assess and facilitate safe functional participation in activities of daily living.

21The respondent submits that a treatment plan without more is not enough to establish entitlement. I agree however I find that the applicant has provided a chronic pain assessment and CNRs that provide that the applicant has chronic pain which would benefit from occupational therapy treatment.

22I find that the applicant suffers from chronic pain, including chronic migraines, tenderness of the rotator cuff, sensitivity to sound, and numbness that impairs his ability to complete daily self-care tasks. The OCF-18 is for an occupational assessment to identify occupational performance issues. The assessment is a reasonable and necessary first step for the applicant to address his ongoing accident-related complaints and allow him to participate in activities of daily living in a safe and functional way. Without the proposed assessment, the applicant is at risk for persisting or unresolved pain and reduced functional participation in home and community activities.

23For these reasons, I find that the OCF-18 is reasonable and necessary, and the applicant is entitled to it in the amount of $2,145.13.

Interest

24Section 51 of the Schedule states that interest is due on the payment of overdue benefits.

25As I have found benefits are payable, it follows that interest applies on any overdue payments of benefits.

Award

26Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.

27While the respondent denied the claim, there is no evidence before me to conclude that it did so unreasonably. The applicant is not entitled to an award.

ORDER

28I make the following order:

i. The applicant’s injuries are not predominantly minor, and he should not be subject to the $3,500.00 limitation of the MIG.

ii. The applicant is entitled to the $2,200.00 for a psychological assessment proposed by Fox Psychological Services in OCF-18 dated September 29, 2020.

iii. The applicant is entitled to the $2,145.13 for an occupational therapy treatment proposed by Rehab First in OCF-18 dated May 8, 2020.

iv. The applicant is entitled to interest on any overdue payment of benefits.

v. The applicant is not entitled to an award.