20-003960/AABS

Licence Appeal Tribunal File Number: 20-003960/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:

Eleonor Quinn

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Terry Prowse

APPEARANCES:

For the Applicant:

Eleonor Quinn, Applicant

Stanley Razenberg, Counsel

For the Respondent:

David Karat, ADR Specialist

Andrew Papadimitropoulos, Counsel

Francine Papadopoulos, Counsel

HEARD: by Teleconference:

November 14, 15, 16, 17, 18 and 21, 2022

OVERVIEW

1Eleonor Quinn, the applicant, was involved in two automobile accidents. The first occurred on August 6, 2017, and the second on September 15, 2019. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The respondent, Security National Insurance Company, denied certain benefits, so the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the disputes.

2Upon consent of the parties, the Tribunal combined the two accident claims for the purpose of this hearing.

ISSUES

3The issues in dispute arising from the August 6, 2017 accident are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 13, 2017 to date and ongoing?

ii. Is the applicant entitled to attendant care benefits in the amount of $624.05 per month from August 6, 2017 to September 14, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $5,037.53 for chiropractic treatment, proposed by Spine Health Care Clinic in a treatment plan/OCF-18 (“plan”) submitted June 3, 2019?

iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

4The issues in dispute arising from the September 15, 2019 accident are:

i. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from September 15, 2019 to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $2,775.66 for chiropractic treatment proposed by Toronto Healthcare Clinic in a plan submitted December 11, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $6,202.36 for occupational therapy proposed by Okell Rehabilitation Services in a plan submitted June 15, 2020?

iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5The applicant is entitled to $2,775.66 for chiropractic treatment. She is not entitled to the other accident benefits in dispute, or an award.

PROCEDURAL ISSUES

6The parties submitted Notices of Motion, which were dealt with prior to moving to the substantive issues in dispute, as follows:

i. On November 1, 2022, the applicant sought from the respondent the clinical notes and records (CNRs) of each insurer medical examiner (IME), as well as any written communications between them and the respondent. The applicant also sought any written communications between the respondent and the surveillance investigation company, Xpera Investigations, and to add Xpera to the witness list. The applicant withdrew the motion after hearing from the respondent that it already provided all documents ordered to be produced and did not intend to use any of the surveillance in its possession.

ii. On November 3, 2022, the respondent brought a motion to supress the applicant’s subpoenas of two claims adjusters, Delia Ravindran and Georgina Zeni. It also wished to exclude the applicant’s lay witnesses, identified only by position title, for failing to provide will-say statements. At the hearing, the respondent acknowledged that the motion was drafted before having the applicant’s final witness list, and it no longer had an issue with the subpoenas. The respondent also stated that the will-say statements were no longer crucial since the applicant identified who the actual witnesses would be. In the interest of hearing efficiency, the respondent was satisfied that the motion was dealt with.

iii. At the commencement of the second day of the hearing, the applicant announced that she would be withdrawing her claim for IRBs related to the September 15, 2019 accident. The respondent consented, with the caveat that any award claim associated with that benefit would also be withdrawn. The applicant agreed and this claim was removed from the issues in dispute

ANALYSIS

Causation of Psychological Issues

7A threshold issue in this dispute is whether the applicant sustained psychological impairments as a result of either accident, because it potentially determines the financial level of treatment that would be available to her. After considering the submissions of the parties, I find that the evidence does not support that the applicant’s psychological impairments were caused by either accident.

8It is well established that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 at paragraph 31. To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accidents, she would not have suffered the impairments that form the basis for her claim.

9It is the applicant’s position that because of the August 2017 accident, she sustained psychological impairments that impacted her ability to work and take care of herself. She submits that she started complaining about sleep and anxiety shortly after the accident. The applicant references a January 10, 2019 report by Dr. Gwyneth Zai, psychiatrist, and a January 15, 2019 report by Dr. Pillai, psychologist, to tie the psychological diagnoses provided by the doctors to the 2017 accident.

10The respondent denies that the applicant sustained a psychological impairment. It notes that there were no complaints of related symptoms immediately following the 2017 accident. The respondent contends that it wasn’t until the following spring that the applicant first described a number of stressful events. These included the 2027 car accident where she may have lost consciousness, even though there the evidence indicated she had not. It contends that any psychological issues the applicant had were the result of other significant issues she was dealing with, such as relationships and working numerous jobs to support and sponsor five members of her family to immigrate to Canada.

11The medical file reflects that the applicant did not complain of psychological symptoms immediately following the accident, or during a follow-up with her doctor on August 8, 2017. On August 17, 2017, she did complain of issues with sleeping, appetite, agitation, and a lack of interest in daily activities. On September 21, 2017, she complained of having trouble sleeping since the accident and was concerned over her loss of control. However, Dr. Alegado, her family physician, wrote that the applicant felt anxious that she was unable to send money to her family in the Philippines, needed to maintain her income and felt that her plans had been deterred because of the accident. On August 15, 2018, Dr. Terra Seon, psychologist, assessed the applicant for a s. 44 insurer’s examination. The doctor described the applicant denying any psychological impairment that interfered with her ability to perform the duties required of her. Dr. Seon also wrote that the applicant denied any symptoms of anxiety that interfered with her overall functioning. Dr. Seon diagnosed the applicant with Adjustment Disorder with Depressed Mood, but “…not of the magnitude to warrant a psychological disability”. Dr. Seon did not link the applicant’s Adjustment Disorder with Depressed Mood to the automobile accident.

12I accept that the applicant described psychological symptoms in the months following the 2017 accident. However, the evidence does not establish, to a degree of probability, that the symptoms were a result of the 2017 accident itself, as much as they were the result of issues with personal relationships. The applicant had also become aware of a medical issue that she was concurrently dealing with. She also reported issues with money, testifying that she had been working multiple jobs to make $50,000 to $60,000, to sponsor and support her family to come to Canada.

13I find there is insufficient reliable and objective evidence from mental health professionals supporting the applicant’s position that she has psychological impairments, as a result of the 2017 accident. On December 15, 2018, Dr. Arunkumar Pillai, clinical psychologist, diagnosed the applicant with major depressive disorder, features of PTSD and features of a pain disorder. However, in reaching his diagnoses, Dr. Pillai referred to self-reporting by the applicant of significant psychological symptoms from the 2017 accident that were never reported previously by her, including to her family physician. It does not appear that Dr. Pillai reviewed her medical file but instead relied on the applicant’s rendition of the accident and her resulting symptoms, which was not historically accurate or investigated further by him. As such, I give Dr. Pillai’s report little weight.

14On January 10, 2019, Dr. Zai, psychiatrist, also concluded that the applicant suffered from psychological issues related to the 2017 accident, including PTSD. However, I did not find Dr. Zai’s report to be persuasive, given that it lacked any substantive analysis into how or why she reached those diagnoses. Dr. Zai’s diagnosis of PTSD is also concerning, given the bases for how she reached it. For example, Dr. Zai’s description of the applicant reporting “…experiencing infrequent flashbacks of the motor vehicle accident with physiological and psychological re-experiencing and she would panic whenever a transport truck was on the driver's side of her car…”, was inconsistent with the applicant’s reports/complaints for the majority of the previous year. Dr. Zai did not question or explain the contradictions.

15I prefer the assessment reports of the IE medical/mental health professionals who relied on the period medical reports and applicant complaints, as opposed to those who relied on information from the applicant’s self-reporting. I find that the evidence does not support that “but for” the 2017 accident, the applicant would not have suffered the impairments that form the basis for her claim. In other words, the 2017 accident did not cause or contribute to a psychological impairment.

16I further conclude that the 2019 accident did not cause or contribute to a psychological impairment.

17The applicant contends that while the 2017 accident started her psychological issues, the 2019 accident made them worse. She points to various medical records and psychological reports, predominantly from her treating psychologist, Dr. Pillai, as evidence of continuing or worsening symptoms.

18I have already concluded that Dr. Pillai’s report deserves little evidentiary weight. When I consider those reports, again, they appear to be based on complaints which are not contained in the medical records, including the applicant describing flashbacks in the absence of corroborating evidence. Again, I find their reports predominantly describe personal issues that the applicant was dealing with at the time, like with employment, relationships, family, finances, and her belief that the accident made the issues worse because it caused her to lose money that she otherwise would have made.

19That is not a description of issues that would not have occurred “but for” the accident. In the background of such significant life events/stressors, there is insufficient objective medical evidence to support that either accident caused or worsened the applicant’s mental health.

20The evidence does not establish that that the applicant sustained psychological impairments as a result of the 2017 accident or the 2019 accident.

Income Replacement Benefits

21The applicant is not entitled to IRBs beyond the $134.29 per week that was paid by the respondent from August 13, 2017 to October 24, 2017.

22During the hearing, the applicant withdrew the claim for an IRB and related award, as they applied to the 2019 accident. In relation to the 2017 accident, she seeks the following:

i. $231.30 per week from January 1, 2021 to December 31, 2021;

ii. $394.55 per week from January 1, 2022 to December 31, 2021; and

iii. $400.00 per week, less any potential future post-accident earnings, calculated in accordance with the Schedule, from January 1, 2023 to December 31, 2023.

23For the applicant to receive payment for an IRB for the periods she seeks, she would need to establish that after the first 104 weeks of her disability and as a result of the accident, that she suffered a complete inability to engage in any employment or self-employment for which she was reasonably suited by education, training or experience. This is a very stringent test that the applicant bears the burden of proving, on a balance of probabilities.

24The applicant acknowledges that she attempted to go back to work following the first accident, but explains it was due to her needing money to bring her family to Canada. The applicant refers to the testimony of Dawn Li, occupational therapist, who acknowledged that she did not take the applicant’s psychological issues into account when compiling her report because it was outside of her expertise. The applicant also refers to the report and testimony of the respondent’s claims adjuster for both accidents Delia Ravindran, contending that she acknowledged the respondent’s position was that an IRB was payable to the applicant in relation to both accidents.

25The respondent denies that benefits are owed, stating that it paid IRBs in the amount of $134.29 per week from August 13, 2017 to October 24, 2017. It points to reports of Dr. Alegado, commencing December 20, 2017, who wrote of the applicant presenting with a desire to get back to work to make money. It also contends that the applicant reported rather significant improvements to other medical professionals, such as in August 2018, when she told Dr. Julie Millard, physiatrist, that her pain had improved 80% since the accident, and the same month when she informed Dr. Andrew Holland, chiropractor, that she had an 80%-90% level of improvement. The respondent states that it ceased the IRB effective October 24, 2017, on the basis of a November 1, 2017 doctor’s note that indicated that the applicant returned to work on modified duties.

26While the applicant’s evidence is that she was not fully cleared by her doctor to work, and only did so because she needed the money, those are not criteria for maintaining the benefit. The evidence shows that the applicant returned to work initially on a modified basis, followed by full-time work. There is no objective, credible evidence that reasonably supports that the applicant suffered from a complete inability to engage in any employment or self-employment for which she was reasonably suited by education, training or experience. Indeed, the evidence shows that she could, and did.

Attendant care benefits in the amount of $624.05 per month from August 6, 2017 to September 14, 2019.

Attendant care benefits in the amount of $3,000.00 per month from September 15, 2019 to date and ongoing.

27I find that the applicant is not entitled to attendant care benefits (ACBs), in relation to either accident.

28Section 19 of the Schedule states 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 for attendant care services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

29The applicant’s position is that she is entitled to ACBs in relation to the August 2017 accident, the September 2019 accident, or both. She relies on an Occupational Therapy Attendant Assessment report by Alexa Yegendorf, OT, dated May 28, 2020. The applicant also relies on two Assessment of Attendant Care Needs (Form 1s), completed by the same OT from information from the May 2020 assessment report. The first Form 1 was related to the 2017 accident and recommended attendant care benefits in the amount of $624.05. The second Form 1 dealt with the 2019 accident, recommending $7,349.19 in attendant care benefits. In her closing submissions, the applicant identified an important consideration for the Tribunal as, “in determining whether attendant care assistance is reasonable and necessary, the central question for the Tribunal is whether you accept that as a result of these accidents [the applicant] suffers from depression and/or other mental health conditions which impact on her motivation and/or cognition.”

30The respondent denies that the applicant is entitled to attendant care, submitting that she did not sustain impairments during either accident which require it. The respondent relies on an August 14, 2020 Section 44 OT In-Home Insurer’s Examination report and 31 July 2020 Form 1, both completed by Dawn Li, OT. Ms. Li concluded that based on her formal and functional testing of the applicant, and with the applicant’s reporting of independence to complete self-care activities, the applicant was able to perform the personal care tasks she normally performed before the accident. Ms. Li recommended $0.00 per month of attendant care benefits.

31The applicant contended that a key question is whether she sustained psychological impairments because of the subject accidents. I agree that this is an important question, however, I have found that the applicant did not sustain psychological impairments as a result of the 2017 and 2019 accidents. I prefer the Attendant Care Needs report and Form 1 of Dawn Li, who conducted her assessment at the applicant’s home, whereas Ms. Yegendorf conducted her assessment via teleconference and virtual observation. Ms. Li took into consideration the applicant’s needs from a functional perspective, while considering the physical impact of both accidents, whereas Ms. Yegendorf took into account significant psychological issues that the applicant said were caused by the accidents. I find that Ms. Yegendorf’s report was based predominantly on the applicant’s self-reporting and therefore give it less weight.

32Further, while the issue in dispute for the second accident identifies that the applicant is seeking $3,000.00 worth of attendant care benefits, that is the maximum available amount, due to her being designated “non-catastrophic”. Ms. Yegendorf’s recommendation was actually for $7,349.19, which included no less than 16 hours per day, 7 days per week of supervision, to assist the applicant with developing a daily routine, incorporating self-care, productive and leisure activities. I find this recommendation is unsupported by the medical evidence, is excessive and therefore not reasonable and necessary.

Medical/rehabilitation Treatment Plans

33To 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.

$5,037.53 for chiropractic treatment - June 3, 2019.

34The applicant has not met her burden of showing that this treatment plan, tied to the 2017 accident, is reasonable and necessary.

35The applicant’s position is that she required chiropractic treatment because she was still struggling from the injuries from the 2017 accident. She contends that the treatment plan, completed by Dr. Darren Hylton, chiropractor, dated June 3, 2019, was necessary for her to deal with chronic pain.

36The respondent disagrees, pointing to the s. 44 IE Assessor’s Report of Dr. Andrew Holland, chiropractor, dated July 25, 2019. After considering the history of the 2017 accident (the 2019 accident had not occurred yet), the applicant’s medical history, treatment and current complaints, he concluded that the treatment plan was not reasonable and necessary. Dr. Holland wrote that the results of his assessment of the applicant failed to identify an ongoing accident-related impairment warranting clinic-based therapy.

37I prefer the opinion of Dr. Holland over that of Dr. Hylton. First, a treatment plan is not evidence of a need for medical or rehabilitative treatment. There must be diagnoses of accident-related injuries/sequelae that require medical treatment and/or rehabilitation, to assist the applicant to return to pre-accident functioning. Dr. Hylton listed a multitude of injuries/sequelae that had not been clinically diagnosed previously and were outside of his scope of practice, as a chiropractor to make. It is unclear which impairment Dr. Hylton understood had already been clinically diagnosed, which was objectively related to the 2017 accident, and which was to be treated in accordance with the treatment plan. In contrast, Dr. Holland considered the accident history, complaints and medical presentation of the applicant before determining that the treatment plan was not reasonable and necessary.

$2,775.66 for chiropractic treatment - September 17, 2019

38The applicant is entitled to the services identified in the treatment plan.

39The applicant’s submission is that the treatment plan, completed by Dr. Saranjit Khaira, chiropractor, is reasonable and necessary, given the injuries and impairments that the applicant sustained in the 2019 accident, which were superimposed onto issues from the 2017 accident. The applicant also referred to a September 23, 2019 clinical note by Dr. Alegado, who prescribed physiotherapy.

40While the respondent discussed the treatment plan briefly during its closing submissions, it did not provide specific reasons as to why it was not reasonable or necessary.

41The treatment plan included goals of pain reduction and increased range of motion, to allow the applicant to return to activities of daily living. The Tribunal has consistently held that pain reduction is a reasonable treatment option. I therefore find that the treatment plan is sufficiently supported by the clinical note of the September 2019 clinical note by Dr. Alegado.

$6,202.38 for occupational therapy services - June 15, 2020

42The applicant has not met her burden of showing that this treatment plan is reasonable and necessary.

43The applicant’s position is that the treatment plan is reasonable and necessary because the OT services, two-to-four times per month at the time, assisted with addressing her cognitive and emotional impairments.

44The respondent points to a s.44 OT Therapy In-Home Insurer’s Examination report by Ms. Dawn Li, OT, dated August 14, 2020. Ms. Li was asked to review and comment on the treatment plan. While conducting the interview, the applicant reported that she did not feel that she needed treatment sessions with an occupational therapist. The applicant described that she was already receiving treatment from a diverse treating team and that she felt the team was assisting her with her symptoms, and that added OT sessions would be too overwhelming. The applicant further reported that she had previously incorporated various task modifications, pacing techniques and coping mechanisms, which she learned following the 2017 accident. With her own findings and the reporting of the applicant, Ms. Li concluded that occupational therapy services were not reasonable and necessary.

45First, the evidence shows that any psychological issues the applicant was dealing with were, more likely than not, caused by significant personal/professional issues that she was dealing with, and not by the automobile accidents. Second, I cannot conclude that the treatment plan is necessary for the applicant, with indications that both she and the assessing OT felt it was not.

Section 10 Award

46Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

47Given that the applicant failed to established entitlement to the benefits she sought, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to her.

48An award is not warranted.

Interest

49Interest is payable on the September 17, 2019 treatment plan, if incurred. There is no interest owing on the remaining issues in dispute.

ORDER

50The applicant is entitled to the treatment plan for chiropractic services, dated September 17, 2019, with interest if incurred pursuant to s. 51 of the Schedule. The applicant is not entitled to the IRB, ACB, remaining treatment plans, or an award.

Released: June 29, 2023

__________________________

Terry Prowse

Adjudicator