Citation: Nifco v. Economical Insurance Company, 2023 ONLAT 21-003347/AABS

Licence Appeal Tribunal File Number: 21-003347/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:

Daniela Nifco

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Ainsley Shannon, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Daniela Nifco, the applicant, was involved in an automobile accident on November 19, 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, Economical 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 in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,128.51 for an attendant care assessment, proposed by 101 Assessments, in a treatment plan submitted February 25, 2020, and denied March 19, 2020?

iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Peter Waxer, in a treatment plan submitted February 25, 2020, and denied March 19, 2020?

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

3The applicant has requested an award under Reg. 664. Although this was not specifically listed as an issue in dispute in the Case Conference Report and Order, I have addressed it below.

RESULT

4The applicant’s accident-related injuries are outside of the MIG as she suffers a psychological impairment.

5The applicant is not entitled to $2,128.51 for an attendant care assessment proposed by 101 Assessments and denied on March 19, 2020.

6The applicant is entitled to $2,460.00 for a psychological assessment proposed by Peter Waxer and denied on March 19, 2020, plus interest in accordance with s. 51 of the Schedule.

7The applicant is not entitled to an award pursuant to Reg. 664.

ANALYSIS

Application of the Minor Injury Guideline

8Section 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.”

9An 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.

10The applicant submits that her accident-related injuries and anxiety remove her from the MIG. The respondent disagrees.

11I find that the applicant has proven on a balance of probabilities she has a psychological condition as a result of the accident that warrants her removal from the MIG.

12The applicant visited her family physician, Dr. Judith Todd, immediately after the accident. She noted that her neck and lower back were hurting, and Dr. Todd diagnosed musculoskeletal strain, prescribed Robax and Tylenol, and recommended physiotherapy or chiropractic treatments. The applicant subsequently began receiving physical therapy and massage at 101 Physio. The applicant’s OCF-1 dated November 29, 2018, states that she was suffering from “extreme anxiety”. An OCF-3 was submitted on December 11, 2018 by Dr. Wayne Coghlan, chiropractor, who indicated that she was “fearful with driving”.

13On February 5, 2019, the applicant was re-assessed at 101 Physio, and the note indicates that she was feeling better, and her pain was occasional. She stopped attending at 101 Physio in May 2019 apparently due to a lack of funding from the insurer.

14The applicant did not return to see her family physician for accident-related issues until November 20, 2019. She complained of ongoing low back pain and an inability to sleep properly. She was referred for imaging, which indicated a diagnosis of osteopenia and degenerative disc disease. A note from Dr. Todd on November 27, 2019, states: “Dr. Pupko for anxiety post MVA”. No further diagnoses, referrals, prescriptions, or recommendations were made by Dr. Todd for the applicant’s accident-related injuries. There is no evidence that the applicant ever visited a Dr. Pupko for anxiety.

15A treatment plan for a psychological assessment, dated February 25, 2020, was submitted by Dr. Peter Waxer, psychologist. Dr. Waxer conducted a pre-screen assessment to determine whether her symptomatology required a psychological assessment. Dr. Waxer indicated that the applicant was easily angered, irritable, and frustrated. She experienced mood swings and was sad and isolated from others. She was experiencing anxiety and nervousness when operating a motor vehicle or travelling as a passenger, and avoided driving on the highway or whenever possible.

16In February 2020, Dr. Todd completed a full physical assessment of the applicant and no musculoskeletal issues were noted. The accident was not mentioned, nor were any pain complaints. On November 17, 2020, the applicant requested stronger pain medication for her lower back. Dr. Todd noted on November 18, 2020 that the applicant’s “back is good”, but her lower back pain was worse in the mornings and eases after a bit. No further referrals, prescriptions, or recommendations were made. The final mention of accident-related issues by Dr. Todd was on February 24, 2021, where she wrote that the applicant was taking Advil for her back pain.

17I find that the applicant has not provided evidence of a physical condition that would fall outside the definition of a “minor injury” as defined in the Schedule. She appears to have sustained no more than sprains and/or strains in the accident. The only other diagnoses with respect to her lower back were osteopenia and degenerative disc disease, but no practitioner has indicated that these conditions have any relation to the accident.

18The applicant makes a cursory mention of “chronic pain” in her submissions. However, she has not provided evidence that she suffers from a chronic pain condition with functional impairments. Although the medical record indicates that, at least until February 2021, she was experiencing back pain, there is insufficient evidence of how, if at all, that pain affects her daily functioning. She does not take prescription medication, she is independent in her self-care, childcare, and housekeeping tasks, and she continues to volunteer at a daycare on a regular basis. She has not proven on a balance of probabilities that she suffers from a chronic pain condition such that the MIG should not apply.

19However, I disagree with the respondent that the applicant did not suffer from psychological symptoms as a result of the accident. There are indications throughout the evidentiary record that the applicant was experiencing symptoms of anxiety, particularly as it relates to driving, as well as irritability and anger.

20The respondent did not obtain a s. 44 psychological assessment of the applicant, and pursuant to s. 44(1) of the Schedule it is not obligated to. However, the respondent’s assessors made reference to psychological symptoms that the applicant was experiencing. I disagree with the respondent’s assertion that the applicant did not mention any psychological symptoms to the s. 44 assessors.

21The applicant attended s. 44 assessments with Dr. Eric Silver, general practitioner, and Deepali Dhawan, occupational therapist, in February 2019. Dr. Silver diagnosed the applicant with myofascial neck pain and mechanical low back pain, and opined that her injuries fit into the definition of the MIG. Dr. Silver noted that she had returned to driving short distances, but avoided unnecessary driving due to anxiety. He did not comment further with respect to the applicant’s anxiety, nor did he defer comment or suggest that she be assessed by someone else. Ms. Dhawan noted that the applicant reported being more irritable and frustrated.

22The respondent argues that the OCF-3 did not list psychological symptoms, however there is mention in that document of the applicant being “fearful with driving”, which is consistent with Dr. Silver’s comments and the psychological pre-screen. Although there is no evidence that the applicant visited a psychologist after being referred by Dr. Todd, the treatment plan for a psychological assessment was submitted a few months after the referral was made. I find it likely that the applicant did not simply ignore Dr. Todd’s suggestion, she just sought assistance from a psychologist elsewhere.

23The respondent relies on AM v. Certas Home and Auto Insurance, 2020 CanLII 40347, where the Tribunal found that one note by the applicant’s family physician was insufficient to support a psychological impairment as it was not supported by ongoing references to psychological issues, and there was no referral to a mental health specialist, and no treatment recommended or prescribed for psychological issues. However, in the case before me, there are multiple notes with respect to the applicant’s anxiety throughout the records, a referral was made to a psychologist, and the applicant sought out a psychologist who submitted a treatment plan for an assessment. The two cases are distinguishable.

24Accordingly, I find that the applicant has provided sufficient evidence to demonstrate, on a balance of probabilities, that she suffers from psychological impairments that justify removal from the MIG.

Is the treatment plan for the psychological assessment reasonable and necessary?

25I find that the applicant is entitled to the cost of the psychological assessment.

26The goals of the treatment plan are to assess the applicant’s psychological condition and recommend possible psychological treatment if required. In determining whether a psychological assessment is reasonable and necessary, the applicant must prove on a balance of probabilities that it was reasonable and necessary to explore the possibility that she suffered from a psychological impairment.¹

27Given my comments above regarding the contemporaneous evidence that the applicant was suffering from psychological impairments, I find that a psychological assessment is reasonable and necessary to determine the extent of the applicant’s injuries and determine whether treatment is warranted.

Is the treatment plan for the attendant care assessment reasonable and necessary?

28I find that the applicant has not proven on a balance of probabilities that the attendant care assessment is reasonable and necessary.

29The applicant does not make any specific submissions with respect to this treatment plan, nor does she point to any evidence of difficulties that would warrant an attendant care assessment. The evidence shows that she is completely independent with respect to her self-care, childcare, and housekeeping tasks. She also volunteers at a daycare on a regular basis. I agree with the respondent that the applicant has not met her burden in demonstrating that this assessment is reasonable and necessary.

30The applicant raises s. 38(8) of the Schedule in asserting that the treatment plans in dispute are payable. However, she does not state any reasons why she believes the respondent’s denial letter was insufficient. Based on the evidence before me, I have no reason to believe that the notice was insufficient, but even if I did, there is no evidence that the treatment plan in dispute has been incurred, and as such the consequences in s. 38(11)2 are not triggered.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the treatment plan for the psychological assessment, if incurred.

Award

32Under s. 10 of O. Reg. 664, the applicant may be entitled to an award of an amount up to 50% of the benefits and interest owed to her if I find that the respondent unreasonably withheld or delayed payments. I find that the applicant has failed to show that is the case.

33The applicant submits that the respondent acted unreasonably by withholding and delaying the payment of the treatment plans in dispute. She submits that she has personally incurred expenses for the assessments. That is the extent of the applicant’s submissions. I note that there is no evidence that any expenses were incurred for the assessments (or that the assessments even occurred).

34It is possible that when the respondent reviewed the reports of Dr. Silver and Ms. Dhawan, it should have seen that the applicant made complaints regarding her psychological condition and should have investigated further. However, in the letter denying the psychological assessment, the respondent does ask for the clinical notes and records from the applicant’s family doctor for its review. I have no way of knowing what documents the respondent had in its possession, or whether the applicant did in fact provide further documentation to the respondent. The respondent is not required to be held to a standard of perfection. Without further information, it is difficult to determine whether the respondent acted unreasonably, as the applicant suggests.

35The threshold for an award is high. The respondent’s denial of the treatment plan for a psychological assessment does not alone suggest that the respondent unreasonably withheld or delayed the benefit. The applicant did not make any specific assertions or explain why it believes the respondent’s conduct was unreasonable. The applicant has not persuaded me that the respondent was inflexible, immoderate or stubborn in withholding the benefit. My decision to entitle the applicant to a psychological assessment was a close call. The respondent cannot be faulted for coming to the opposite conclusion in this case.

ORDER

36The applicant’s accident-related injuries are outside of the MIG as she suffers a psychological impairment.

37The applicant is entitled to $2,460.00 for a psychological assessment proposed by Peter Waxer and denied on March 19, 2020, plus interest in accordance with s. 51 of the Schedule.

38The applicant is not entitled to $2,128.51 for an attendant care assessment proposed by 101 Assessments and denied on March 19, 2020.

39The applicant is not entitled to an award pursuant to Reg. 664.

Footnotes

1. 117-003735 v. Certas Direct Insurance Company, 2018 CanLII 39445