Licence Appeal Tribunal File Number: 20-015028/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:
Flores MT Ayala
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Joy Kohli, Counsel
HEARD: By way of written submissions
OVERVIEW
1Flores MT Ayala, the applicant, was involved in an automobile accident on December 21, 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, Intact 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 of the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 24, 2020 to December 21, 2020?
iii. Is the applicant entitled to $2,197.29 for a psychological assessment, proposed by Health Pro Wellness in a treatment plan denied on October 2, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664?
RESULT
3The applicant has not demonstrated on a balance of probabilities that she is entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline.
4The applicant is not entitled to the treatment plan for a psychological assessment.
5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
6The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
ANALYSIS
Application of the Minor Injury Guideline
7Section 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.”
8An 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.
9The applicant submits that from both a physical and psychological perspective, her injuries cannot be treated within the monetary limits of the MIG. The respondent disagrees.
10I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG on account of her physical injuries.
11The applicant has not provided much evidence to show that she should be removed from the MIG from a physical perspective. She relies on an OCF-3 from chiropractor Dr. Salayeva dated January 3, 2019, a single note from her family physician, Dr. Agbayani, on February 2, 2019, and a s. 44 report of Dr. Hanna, general practitioner, from August 2019. The physical diagnoses provided by these practitioners included sprain/strain type injuries, whiplash associated disorder, and headaches. She has never been diagnosed with a physical impairment that lies outside of the definition of a “minor injury” pursuant to the Schedule. The applicant has not provided any other clinical notes and records from Dr. Agbayani or other treating physicians or therapists.
12The applicant states that she has “become dependent on strong opiates” such as Ketorolac, Naproxen, and Statex to control her pain. There is no evidence that she takes any pain medication for her injuries. She reported to Dr. Aghamohseni, psychologist, in October 2020 that she does not take any medication. She was prescribed Baclofen by Dr. Agbayani on February 2, 2019, but the prescription summary does not show that this was ever filled. The respondent also points out that the medications the applicant refers to were prescribed for issues not related to the accident: Ketorolac for headaches due to a viral infection, and Naproxen and Statex by an obstetrician for a cesarian section. Based on the records produced by the respondent, and without any explanation from the applicant, it appears that the respondent is correct.
13The applicant makes brief reference in her submissions to her suffering from chronic pain, but there is limited evidence as to the frequency and severity of her pain, and she has not demonstrated that she has a functional impairment as a result of pain. As far as the records show, she has not been referred for any imaging, or to any specialists, and she has not taken prescription pain medication as a result of the accident. There are no records to indicate that she is receiving treatment or medical assistance for her accident-related injuries.
14Prior to the accident, the applicant was unemployed; she is now apparently employed full time. She reported to Dr. Hanna that her pain does not prevent her from performing her regular daily activities. She is independent with respect to her personal care and housekeeping, and has resumed her pre-accident recreational activities. She has difficulty with her outdoor maintenance tasks, but Dr. Hanna encouraged her to gradually resume those activities. Despite submitting that she has difficulty with caregiving tasks, there is no evidence for that within the records or reports.
15The applicant has the burden of proving that her physical injuries warrant removal from the MIG. I find that she has failed to meet her onus in that regard.
16While the applicant may have experienced some psychological symptoms as a result of the accident, I find that those symptoms do not rise to the level required to remove her from the MIG.
17The applicant has not provided any clinical notes and records from treatment providers that would speak to her psychological impairments. She instead relies on the report of Dr. Aghamohseni, the pre-screening report from Dr. Aghamohseni attached to the treatment plan for the assessment, and the s. 44 report of Dr. Hanna.
18Dr. Aghamohseni diagnosed the applicant with Major Depressive Disorder, Somatic Symptom Disorder, and Specific Phobia (vehicular). She recommended 12 psychotherapy sessions, and an in-vehicle driving anxiety assessment. The applicant reported being hypervigilant in a car as a passenger and driver, having intrusive thoughts and upsetting memories, and waking during the night due to pain and anxiety.
19Dr. Hanna does not diagnose the applicant with any psychological impairments, and in fact deferred comment in that regard. The applicant reported symptoms to him of agitation, increased stress, and sleeping issues. He did not delve further into those reported symptoms, so I find that his report is not overly helpful for determining this issue.
20The respondent relies on the s. 44 report of Dr. Lee, psychologist, from March 9, 2021. The applicant reported to Dr. Lee that she has no recollection of seeing any mental health professionals since the accident, and that “she felt she required no psychological treatment.” Dr. Lee indicated that the applicant also had a subsequent motor vehicle accident four months after the 2018 accident where she slid on ice and hit a ramp. The applicant reported the following to Dr. Lee:
i. She does feel some increased anxiety with driving, but she is not scared to get behind the wheel.
ii. There are no specific situations that cause her increased anxiety, but she is generally more cautious post-accident.
iii. Her mood overall is normal.
iv. She does not consider herself to be depressed.
v. Her sleep can be temporarily disrupted by pain but not to a significant extent.
vi. She did not report nightmares, flashbacks, or intrusive thoughts about the accident.
vii. She had some concentration difficulties, but not to a significant extent, and she did not attribute this to the motor vehicle accident.
21Dr. Lee conducted a battery of psychological tests, and found that the applicant did not have any significant elevations of any symptoms. His opinion was that the applicant was not suffering from any significant psychological sequelae that would reach the threshold of a diagnosable mental health disorder or require psychological treatment outside of the MIG. Although she had some anxiety with driving, this did not result in any significant impairment or avoidance.
22I prefer the report of Dr. Lee over that of Dr. Aghamohseni. Dr. Aghamohseni conducted five psychological tests, but, without any explanation, did not indicate the applicant’s scores on three of them. Dr. Lee and Dr. Aghamohseni used different tests, although they both used the Patient Pain Profile. Dr. Lee stated that the applicant’s scores on that test were in the average range for depression and somatization, and the below average range for anxiety. Dr. Aghamohseni was silent with respect to the scores.
23Dr. Lee’s report appears to have been more thorough. He reviewed the clinical notes and records available to him, whereas there was no indication that Dr. Aghamohseni did. Dr. Lee noted that the applicant was involved in a subsequent motor vehicle accident four months after the first, whereas Dr. Aghamohseni did not. Dr. Aghamohseni indicated that the applicant had cognitive and sleep issues, but did not delve into whether these symptoms were caused by psychological issues related to the accident. Conversely, Dr. Lee appears to have probed further and found that these symptoms were either not psychological in nature, or not due to the accident.
24Even if I assessed the reports as having equal weight, there is clearly an unexplained discrepancy between their opinions. The applicant’s failure to produce any corroborating or persuasive evidence of a psychological impairment outside of Dr. Aghamohseni’s report is detrimental to her claim, as she bears the onus of tipping the balance of probabilities in her favour.
25I also note that if the applicant was involved in another accident four months after the first, and her psychological symptoms are mostly with respect to how she feels in a vehicle, it is possible that the second accident was the cause of those symptoms. I cannot determine that issue without further information or evidence, which has not been provided.
26For all of the above reasons, I find that the applicant has not met her onus in proving that she suffers from a psychological impairment as a result of the 2018 accident that would remove her from the MIG.
Non-Earner Benefit
27I find that the applicant has not met her burden of proving that she is entitled to a non-earner benefit for the period in dispute.
28Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers 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 NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 [Heath], which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
29The applicant submits that she is entitled to NEBs due to the myriad of injuries and impairments caused by the accident. She relies on the OCF-3 from Dr. Salayeva, as well as Dr. Aghamohseni’s report. She states that her psychological diagnoses render her completely unable to carry on activities of normal life, and that Dr. Aghamohseni concluded that her psychological symptoms led to serious and major impairments in her daily tasks as a person and as a caregiver. The applicant also points out that the respondent’s own assessors concluded that she suffers from significant physical and psychological injuries, all of which led to her complete inability to carry on a normal life.
30In reality, not one assessor has stated that the applicant has sustained a complete inability to carry on a normal life. Dr. Aghamohseni did not comment on this issue. In fact, she stated that the applicant was working full time without further elaboration as to her ability to do her job. She did not say that the applicant was impaired with respect to her caregiving tasks. Although Dr. Aghamohseni stated that the applicant had difficulty with her household chores, she did not explain how or why. Dr. Aghamohseni stated that the applicant has not been able to engage in leisure activities, when according to the other assessors, the opposite is true. Even if I did not have difficulty accepting the conclusions of Dr. Aghamohseni, I find that her report is not helpful to the applicant in establishing that she meets the test for NEBs.
31The s. 44 assessors referred to by the applicant opined that the applicant did not suffer a complete inability to carry on a normal life. Neither of them stated that she suffers from significant physical and psychological injuries, as suggested by the applicant. When the applicant was assessed by Dr. Hanna, she was in the process of opening her own restaurant. She had returned to the majority of her pre-accident activities of daily living and recreational activities by the time of Dr. Hanna’s assessment in May 2019. The other s. 44 assessor, Ms. Kugathasan, an occupational therapist, indicated that from a functional perspective, the applicant was able to resume her normal life activities as of the date of her assessment in August 2019. The only personal care task she did not complete herself at that time was toenail care, and her husband performed the deeper cleaning tasks.
32I agree with the respondent that the OCF-3 relied on by the applicant is of little assistance. Dr. Salayeva indicated on January 3, 2019 that the applicant’s impairment was expected to last 9-12 weeks. The respondent paid NEBs up to January 24, 2020, prior to the completion of the s. 44 assessments, and therefore the applicant was paid NEBs during the 9-12 week timeframe indicated by Dr. Salayeva. There is no further OCF-3 before me that relates to the period in dispute.
33The respondent submits, and I agree, that the test in Heath is heavily factually driven. The respondent argues that the applicant failed to satisfy the criteria outlined in Heath to support her eligibility for NEBs. She did not provide evidence of the frequency and time commitments of her pre-accident activities to compare them to the activities she is able to participate in now.
34The applicant mentions the test in Heath, but does not explain the differences between her pre-accident and post-accident activities. She simply states that she meets the test “based on a holistic review of the medical documents”. She does not point to any issues within the reports of the s. 44 assessors, or their conclusions. As noted above, she has provided scant evidence in support of her entitlement to this benefit.
35For all of those reasons, I find that there is a lack of evidence that during the time period in dispute, the applicant was entitled to a NEB.
36To receive payment for a treatment and 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.
37I find that, at the time the treatment plan for the psychological assessment was submitted, it was not reasonable and necessary. No clinical notes and records have been produced indicating that the applicant was suffering from psychological symptoms as a result of the accident. Even in the OCF-3 relied upon by the applicant, no psychological symptoms were indicated. The reports from the s. 44 assessors from August 2019 mention some psychological symptoms, but do not delve into this further. In any event, the OCF-18 was submitted over a year later, and there is no evidence of the applicant’s psychological condition during that time.
38The only indication of the applicant’s psychological symptoms at the time the treatment plan was submitted was noted in the OCF-18 itself. I do not know what otherwise prompted the request for a psychological assessment in September 2020, especially given the applicant’s own statement to Dr. Lee that she felt she did not require psychological treatment. An OCF-18 alone is not objective medical evidence. Further, as indicated above, I am not persuaded by Dr. Aghamohseni’s report.
39For all of those reasons, I find that the applicant has not met her burden in proving on a balance of probabilities that the treatment plan is reasonable and necessary.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, interest is not payable.
Award
41The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that none of the benefits in dispute are owing, there is no basis upon which to consider an award.
ORDER
42The applicant has not demonstrated on a balance of probabilities that she is entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline.
43The applicant is not entitled to the treatment plan for a psychological assessment.
44Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
45The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
Released: June 9, 2023
Rachel Levitsky
Adjudicator