Licence Appeal Tribunal File Number: 21-000137/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:
Mariusz Lechowski
Applicant
and
Waterloo Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
David Carranza, Paralegal
For the Respondent:
Hermina Nuric, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1Mariusz Lechowski, the applicant, was involved in an automobile accident on July 15, 2019, 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, Waterloo 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:
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 and in the Minor Injury Guideline?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed in a treatment plan (“OCF-18”) dated April 16, 2020?
Is the applicant entitled to $3,566.29 for psychological services, proposed in an OCF-18 dated May 20, 2020?
Is the applicant entitled to $3,566.29 for psychological services, proposed in an OCF-18 dated November 24, 2020?
Is the applicant entitled to $3,566.29 for psychological services, proposed in an OCF-18 dated April 26, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s psychological impairments are not a predominantly minor injury and he is not subject to treatment within the Minor Injury Guideline.
4The applicant is entitled to the OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule.
5The applicant is entitled to the OCF-18 dated May 20, 2020 for psychological services, plus interest in accordance with s. 51 of the Schedule.
6The applicant is not entitled to the remaining OCF-18s for psychological services, as he has not established that they are reasonable and necessary.
ANALYSIS
Minor Injury Guideline (“MIG”)
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.
The applicant’s psychological impairments warrant removal from the MIG
9The applicant submits that he should be removed from the MIG on the basis that his psychological impairments do not fit the definition of a “minor injury” under the Schedule. I agree and find that the applicant has proven on a balance of probabilities that he sustained a psychological impairment as a result of the accident, warranting treatment beyond the MIG limits.
10The clinical notes and records (“CNRs”) of the applicant’s treating physicians indicate that after the accident, the applicant reported psychological symptoms, in addition to his physical and pain complaints. The applicant was referred by his family physician to Dr. Wong, a physiatrist. In his reporting letter dated January 21, 2020, Dr. Wong diagnosed the applicant with myofascial injury of the neck and upper back muscles, post-traumatic insomnia and psychological stress. He recommended SSRI medication, sleeping pills and medication for pain. In addition, in June and July 2020, the applicant’s family physician Dr. Debssou noted the applicant’s reports of anxiety related to driving and increased aggressiveness and recommended counselling.
11Despite the respondent’s denial of the OCF-18 dated April 16, 2020 for a psychological assessment, the applicant underwent and incurred an assessment with Dr. Aghamohseni. In a s.25 report dated May 23, 2020, Dr. Aghamohseni diagnosed the applicant with specific phobia, vehicular, somatic symptom disorder with predominant pain and major depressive disorder, single episode, with anxious distress. Dr. Aghamohseni reported that the applicant continued to suffer from daily pain, sleep issues, cognitive concerns, depressive and anxious symptoms, increased irritability and reduced patience with friends and vehicle related fear, ten months post-accident. She opined that the applicant’s psychological diagnosis falls outside of the MIG and recommended twelve sessions of psychotherapy treatment. The applicant incurred these counselling sessions and underwent a total of twenty-four psychotherapy sessions from August 2020, until April 26, 2021.
12The respondent submits that the applicant has not sustained a significant psychological impairment warranting removal from the MIG. It relies on two psychological insurer’s examinations (“IE”s) of Dr. Day, dated March 17, 2020 and February 17, 2022. The respondent further submits that in order to be removed from the MIG, the applicant’s symptomatology “must rise ‘to the level of a severe or extreme impairment’”, and cites Tribunal caselaw in support of its claim. It contends that the applicant’s psychological symptoms do not meet this threshold of extreme impairment or significant functional impairment.
13I do not find the respondent’s argument to be persuasive, and agree with the applicant that an insured is not required to establish a severe or extreme psychological impairment in order to be removed from the MIG. Although the respondent cites a Tribunal decision, S.W. v. Aviva Insurance Company of Canada, 2020 CanLII 69923, in support of its position, I note that while Tribunal caselaw may be persuasive, it is not binding upon me. Moreover, although the respondent states that an insured’s psychological symptoms “must” rise to the level of a severe or extreme impairment, I note that in the decision cited by the respondent, the adjudicator noted only that “some” caselaw has required that the impairment be severe or extreme. In contrast, in the decision cited by the applicant, D.G v. Wawanesa Mutual Insurance Company, 2019 CanLII 110079 (ON LAT), a threshold of severe or extreme psychological impairment was not required by the adjudicator. I prefer the reasoning in D.G. v. Wawanesa.
14Further, although the respondent submits that the applicant has not established any functional impairment as a result of his psychological symptoms, I find that the evidence establishes that he suffered from a significant impairment. In its submissions, the respondent focusses on the fact that the applicant was still able to drive and work, even though he reported varying degrees of vehicular anxiety. The respondent also notes that its surveillance conducted in June and July 2021, indicated that the applicant was able to drive. However, the session notes and progress reports of the applicant’s psychotherapist indicate that even though the applicant was driving, he was suffering from a heightened state of fear when driving, which impacted his overall mood and relationships. In multiple sessions, the applicant reported that in addition to his anxiety, his anger at other drivers would spill into other areas of his life and that he was angry “most of the time”. This psychological impairment was being addressed throughout the psychotherapy sessions. Further, although the respondent’s surveillance indicated that the applicant was driving in June and July 2021, I note that this was after the applicant had already completed twenty-four sessions of psychotherapy, where his driving anxiety was specifically addressed.
15With respect to the respondent’s IE assessments, I note that the first psychological IE of Dr. Day, conducted just over six months post-accident on January 27, 2020, found that the applicant was complaining of vehicular anxiety, occasional sadness, generally lower energy level, heightened irritability and sleep issues, in addition to his pain complaints. Although Dr. Day found that the applicant did not meet full diagnostic criteria for any DSM-5 psychological disorder, he noted that the applicant was “on the cusp” of meeting diagnostic criteria for an adjustment disorder and that his need for mental health treatment should be considered if the psychological symptoms worsened. I find that the medical record indicates that the applicant’s symptoms did worsen. Relatively contemporaneously with the respondent’s IE assessment, Dr. Wong, the applicant’s physiatrist diagnosed the applicant with post-traumatic insomnia and psychological stress and prescribed medication. In June and July 2020, the applicant continued to report anxiety and was referred to counselling by his family physician.
16Although the respondent also relies on a subsequent IE report of Dr. Day dated February 17, 2022, I find that it is of limited persuasive value. Although Dr. Day found that the applicant did not have any accident-related psychological diagnosis that would take him outside of the MIG, I note that this assessment was conducted almost three years post-accident, and after the applicant had already completed twenty-four self-incurred psychotherapy sessions.
17Given the foregoing, I find that the applicant has adduced sufficient evidence to establish that he had sustained accident-related psychological impairments warranting removal from the MIG.
18As I have found that the applicant has been removed from the MIG on the basis of psychological impairment, it is unnecessary for me to consider the additional grounds for removal of chronic pain. However, the onus still rests with the applicant to establish that the proposed treatment plans are reasonable and necessary.
19Sections 14, 15 and 16 of the Schedule set out 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.
20The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.
The OCF-18 for a psychological assessment and the OCF-18 dated May 20, 2020 for psychological services, are reasonable and necessary
21Given the evidence cited above, regarding the applicant’s diagnosis of vehicular phobia, somatic symptom disorder and depressive disorder, with anxious distress, and the continuing psychological symptoms noted throughout the psychotherapy session notes, I am satisfied that the applicant has provided objective grounds for a psychological assessment.
22The s. 25 assessment of Dr. Aghamohseni recommended twelve psychotherapy sessions incorporating cognitive behavioural, psychoeducational, relaxing meditation training and supportive strategies. The OCF-18 dated May 20, 2020 proposed twelve such sessions to address the listed impairments of: depressive episode, persistent somatoform pain disorder and specific (isolated) phobias. This treatment plan was incurred in full by the applicant. I find that the treatment plan is reasonable and necessary considering the applicant’s ongoing psychological impairments, almost a year post-accident.
23As such, I find that both the OCF-18 for a psychological assessment and the OCF-18 dated May 20, 2020 for psychological services, are reasonable and necessary pursuant to the Schedule.
The applicant has not established entitlement to the OCF-18s dated November 24, 2020 and April 26, 2021 for psychological services
24After completing the initial course of psychotherapy sessions, the applicant submitted two more OCF-18s dated November 24, 2020 and April 26, 2021, for identical courses of twelve psychotherapy sessions each, in the same amount of $3,566.29. The stated injuries were again identified as being: depressive episode, persistent somatoform pain disorder and specific (isolated) phobias. The treatment goals included: assisting the applicant in managing his pain, addressing his heightened state of anger, particularly towards other drivers, addressing his confidence, negative thinking and anxiety issues.
25I find that the applicant has not established that the two additional courses of psychotherapy sessions are reasonable and necessary to address his accident-related impairments.
26When the OCF-18 dated November 24, 2020 was submitted, the applicant had already completed a course of twelve psychotherapy sessions. The session notes indicate that the applicant made substantial gains throughout the course of treatment from August to November 2020. I agree with the respondent’s submissions that the focus of therapy was almost exclusively on the applicant’s vehicular anxiety. While in the first half of the sessions, the applicant reported a heightened state of fear when driving, anger and at times aggression which impacted his overall mood, life and relationships, this changed substantially over the twelve sessions. By the end of the session block, the applicant was reporting that he was doing well, that he was not as stressed or angry when driving, which he attributed to treatment, although he did have some concerns about driving in the changing weather. At his last session, he reported that he was overall a much more comfortable driver and felt more confident behind the wheel.
27Despite these apparent gains, a second identical course of twelve treatment sessions were proposed on November 24, 2020. The progress note and treatment plan prepared by Dr. Aghamohseni do not appear to be reflective of the fact that the applicant had already received substantial treatment and had already improved significantly in terms of his vehicular anxiety. Although the OCF-18 states that the applicant “still becomes quite angry and aggressive with other drivers on the road”, this is not reflected in the individual session notes.
28Moreover, although the treatment goals of the OCF-18 appeared to identify pain management as a goal, the applicant expressly stated in his last therapy session on November 24, 2020, that the therapeutic sessions did not help him manage his pain. Although the other stated impairment in the OCF-18 was identified as depressive episode, the therapy notes similarly do not indicate that the applicant was reporting or being treated for depressive symptoms. The CNRs of the applicant’s family physician further do not indicate that at the applicant was reporting any psychological symptoms at the time the new OCF-18s were being submitted.
29With respect to the subsequent OCF-18 dated April 21, 2021, the OCF-18 itself and corresponding progress note are essentially identical to the prior November 24, 2020 OCF-18 and progress note, despite the applicant having attended an intervening additional twelve sessions of treatment. During the treatment block between January 2021 to April 2021, the applicant continued to report feeling confident behind the wheel, that he was feeling “good” and “a lot better”. I agree with the respondent these session notes do not indicate a psychological impairment necessitating an additional twelve sessions of treatment. Nor do the April 2021 OCF-18 and progress report reflect the significant gains the applicant had already attained with previous treatment.
30As such, I find that the applicant has not met his onus to prove that the additional psychotherapy sessions proposed in the November 24, 2020 OCF-18 or the April 21, 2021 OCF-18 are reasonable and necessary.
s. 38(8) Notice Requirement
31As an alternative argument, the applicant submits that the OCF-18s in dispute are payable, due to the respondent’s non-compliance with the requirements of s. 38(8) of the Schedule.
32I disagree. The respondent’s denial letters dated May 27, 2021 and January 13, 2021 clearly stated that the applicable OCF-18s were being denied on the basis of Dr. Day’s March 17, 2020 IE report, and Dr. Day’s findings were summarized within the denial. I find that the respondent provided a medical reason for the denial, and that the reasons why the respondent was denying the OCF-18s were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue, in accordance the Schedule and with the principles set out in T.F. v. Peel and Hedley, 2018 CanLII 39373. I further agree with the respondent’s submissions and cited caselaw that an insurer is permitted to rely on prior IEs that do not address the OCF-18 when denying a claim, and that an new IE is not required for every treatment plan.
Interest
33The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the OCF-18 dated April 16, 2020 for the psychological assessment, and the OCF-18 dated May 20, 2020 for psychological services.
ORDER
34For the reasons outlined above, I find that:
i. The applicant has met his burden of proving on a balance of probabilities that his accident-related impairments warrant removal from the MIG on the basis of a psychological impairment;
ii. The applicant is entitled to the OCF-18 dated April 16, 2020 for a psychological assessment, plus interest in accordance with s.51 of the Schedule;
iii. The applicant is entitled to the OCF-18 dated May 20, 2020 for psychological services, plus interest in accordance with s. 51 of the Schedule.
iv. The applicant is not entitled to the remaining OCF-18s for psychological services.
Released: June 30, 2023
Ulana Pahuta
Adjudicator