Guerra v. The Co-Operators Insurance Company, 2023 CanLII 77301

Citation: Guerra v. The Co-Operators Insurance Company, 2022 ONLAT 21-005032/AABS

Licence Appeal Tribunal File Number: 21-005032/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:

Felix Guerra

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATORS:

Anita John Richard Warr

APPEARANCES:

For the Applicant:

Felix Guerra, Applicant

Agal Lankeswaran, Paralegal

For the Respondent:

Crystal Manhertz, Adjuster

Emily Schatzker, Counsel

Amirali Golpira, Co-counsel

Court Reporter:

Maureen Biscak

Heard by Videoconference:

September 21, 22 and 23, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant, Felix Guerra, was involved in an automobile accident on July 24, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2On July 24, 2020, the applicant was the seat-belted driver in a motor vehicle proceeding through an intersection. His vehicle was struck by a vehicle turning left connecting with the rear driver side of the applicant’s vehicle. The applicant called 911 and the police and paramedics attended the scene. The applicant drove from the accident scene to a collision reporting centre to report the accident and then drove home.

3The applicant was denied certain benefits by the respondent, the Co-operators Insurance Company. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

4The issues in dispute to be decided at this hearing are:

1. Is the applicant’s impairment of a nature that it falls within the Minor Injury Guideline?

2. Is the applicant entitled to a non-earner benefit for $185.00 per week from October 5, 2020, to date and ongoing?

3. Is the applicant entitled to the following for physiotherapy in treatment plans by Midland Wellness Centre as follows:

a. $3,747.44 submitted August 14, 2020, and denied August 27, 2020?

b. $2,860.40 submitted November 14, 2020, and denied November 26, 2020?

c. $2,797.60 submitted January 11, 2021, and denied January 12, 2021?

4. Is the applicant entitled to $1,995.33, for a psychological assessment, in a treatment plan by Midland Wellness Centre submitted December 28, 2020, and denied January 11, 2021?

5. Is the applicant entitled to $2,832.98 for psychological services proposed by Midland Wellness Centre submitted March 1, 2021, and denied March 3, 2021?

6. Is the applicant entitled to $2,443.94 for chiropractic and massage in a treatment plan proposed by Midland Wellness Centre submitted March 16, 2021, and denied March 18, 2021?

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

RESULTS

5I find that the applicant’s psychological impairment is not a predominantly minor injury. As such, he is not subject to treatment within the Minor Injury Guideline.

6The applicant is entitled to payment of $1,995.33 for a psychological assessment.

7The applicant is entitled to payment of $2,832.98 for psychological services.

8The applicant is not entitled to the non-earner benefit, nor are the OCF-18s for physiotherapy and chiropractic treatment reasonable or necessary.

9The applicant is further entitled to interest on these outstanding amounts pursuant to s. 51 of the Schedule.

The Minor Injury Guideline

10The Minor Injury Guideline (“MIG”) establishes a framework for treatment available to injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

11Psychological impairments and chronic pain with a functional impairment are not considered minor injuries.

12Subsection 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. In addition to sustaining a non-minor injury, an applicant may receive payment for treatment beyond this limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG.

13In Scarlett v. Belair Insurance, the Ontario Divisional Court held that it is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

14According to correspondence from the respondent, dated August 17, 2020, the applicant has $1,300.00 remaining in the MIG.

Physical Impairments and the MIG

15I am not satisfied the applicant has established, on a balance of probabilities, that he sustained physical injuries because of the accident that would warrant his removal from the MIG.

16On July 27, 2020, the applicant attended at Midland Wellness Centre and was examined by Deepthi Madhuvani Pullagura, a physiotherapist. Physiotherapist Pullagura completed a Disability Certificate (OCF-3) on behalf of the applicant. This OCF-3 lists the applicant’s injuries as whiplash associated disorder with a complaint of neck pain with musculoskeletal signs, headache, malaise and fatigue, nonorganic sleep disorders, dizziness and giddiness, and nervousness. The physiotherapist also noted that the applicant suffered a complete inability to carry on a normal life and a substantial inability to complete housekeeping duties. The physiotherapist anticipated that these injuries would last nine to twelve weeks.

17The applicant also relies on the clinical notes and records (“CNRs”) of his treating family physician, Dr. Raffy Moussa. The applicant visited Dr. Moussa, for the first time following the accident on July 29, 2020. He was examined by a family medicine resident, Dr. Aneesh Thadani, who working with Dr. Moussa. At this visit, the applicant complained of neck pain. Dr. Thadani diagnosed whiplash and noted “tender to palpation over musculature posterior neck pain elicited with lateral abduction of neck bilaterally neck extension”. The applicant was advised to get physical therapy, as well as Tylenol and Voltaren topical lotion, for pain management and to attend at a hospital emergency room if neurological signs were to develop.

18The applicant’s next post-accident visit to Dr. Moussa was on September 16, 2020. At this visit, Dr. Moussa made the following notation “wants to see a neck doctor he saw in past but doesn’t know their name still experiencing chronic neck and back pain he can call us back to tell me who he wants to see.” There is, however, no note linking this pain to the subject accident.

19The respondent relies on the Insurer Examination (“IE”) Report of Dr. R. Zabieliauskas, physiatrist, finalized on May 25, 2021. The applicant exhibited good alignment of his entire spinal column and lower extremities. He reported no tenderness to palpation in the head and neck area, and the doctor noted that there was no palpable muscle spasm noted in the head and neck area. He demonstrated full range of motion of the neck in all planes without requiring pain. Upon physical examination, the doctor noted that the bulk, tone, and strength of all lower extremities were good.

20Dr. Zabieliauskas opined that there was no evidence that the applicant has chronic pain syndrome. Dr. Zabieliauskas explained in his testimony that the applicant, at the time of this examination, was not taking pain medication or pursuing any other interventions for chronic pain and that the applicant’s activity level did not suggest any chronic pain syndrome.

21Dr. Zabieliauskas concluded that the applicant suffered soft tissue injuries or strains because of the accident that should have healed in the ensuing two to three months, and certainly within six months post-accident. Dr. Zabieliauskas found that the applicant is safe to resume all aspects of his life that he was engaged in prior to the July 24, 2020, accident without any physical restrictions or functional limitations.

22The applicant has not provided any s. 25 Assessment Reports regarding his alleged physical impairments. In addition, the CNRs of Dr. Moussa does not mention that the neck pain is explicitly linked to the accident. I am not otherwise persuaded that the accident was a reasonable and necessary cause of this physical pain.

23Dr. Zabieliauskas was the only medical professional who provided an assessment report with respect to the applicant’s alleged physical impairments. In addition to a clinical examination, he reviewed assessments, imaging reports, CNRs, accident reports and treatment plans. I place significant weight upon his conclusions that the applicant suffered soft tissue injuries because of the accident, and that any residual pain was sequelae of these sprains and strains.

24Given the strength of Dr. Zabieliauskas’s report and the lack of a responding s. 25 report, I cannot otherwise conclude that the applicant’s physical impairments were caused by the accident. The sprains and strains outlined in the documents should have been resolved within six months. I am satisfied that any residual pain is a sequela of these minor injuries as outlined in s. 3 of the Schedule. As a result, I am persuaded that the applicant’s physical injuries fall within the treatment limits of the MIG.

Psychological Impairment and the MIG

25Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” Based on the evidence provided, I am satisfied that the applicant’s psychological impairments place him outside of the treatment limits of the MIG.

26In terms of the applicant’s background, it was mentioned that a psychological assessment was carried out on December 8, 2018, by treating psychologist, Dr. Behzad Goodarzi, following a previous motor vehicle accident that took place on December 26, 2017. Dr. Goodarzi noted that the applicant suffers from a lingering conditioned fear in relation to driving a car. The applicant was diagnosed with adjustment disorder, moderate depressive disorder symptoms, significant worries and intrusive preoccupations, trauma-related symptoms, disturbed sleeping patterns and cognitive functioning problems. In that report, Dr. Goodarzi highly recommended fourteen sessions of psychological treatment through supportive psychotherapy CBT (cognitive behaviour therapies), and stress management strategies/techniques, as well as pain management techniques.

27In addition, a progress report, dated November 30, 2019, was authored by Dr. Goodarzi, regarding the December 26, 2017, accident. She noted that there are still a few lingering problems primarily on account of the perpetuating stressors/symptoms (such as sleeping problems) and newly emerged stressors (including the client’s newly started business courses and the more proactive role he has been assuming) as well as the pre-existing maladaptive/intrusive feelings (“loneliness”, “abandonment”, and “being unloved”). Of note, Dr. Goodarzi noted that these feelings became more intensive and intrusive in the accident aftermath as the result of the adverse impact of the accident-induced problems. In that report, Dr. Goodarzi opined that eight therapy sessions would allow the applicant to achieve a more stable and optimal mental health condition.

28I place weight upon the Psychological Assessment Report completed by treating psychologist, Dr. Goodarzi, dated January 16, 2021. In this report, Dr. Goodarzi addressed the applicant’s self-reports of anxiety while driving and depression regarding the subject motor vehicle accident. This report provided the only objective psychometric testing tendered in evidence. Dr. Goodarzi used the following examination tools: a clinical interview, a mental status examination, the Beck Depression Inventory II (BDI-II) and the Beck Anxiety Inventory (BAI).

29In terms of scores, the applicant’s score on the BDI-II test revealed moderate level of depression. Furthermore, the applicant’s score on the BAI test revealed a moderate level of anxiety. Dr. Goodarzi noted that the scores on these depression and anxiety inventories were consistent with what the applicant reported and what she observed during the meeting.

30Following the clinical interview and testing, a diagnosis of adjustment disorder with mixed anxiety and depressed mood, was tendered, in relation to the accident, coupled with moderate depressive symptoms, generalized anxiety, intensively disturbed sleeping pattern and cognitive functioning problems. Dr. Goodarzi indicated that the applicant’s psychological impairments from the recent motor vehicle accident were intrusive and recommended a course of fifteen sessions of treatment.

31Prior to the subject accident, the applicant was diagnosed with sleep apnea in 2010. There are at least seven notations in the CNRs of Dr. Moussa with respect to the applicant’s Cipralex prescription from November 19, 2018, to April 10, 2019. One of the applicant’s treating physicians, Dr. Aneesh Thadini, prescribed Lyrica from July 4, 2019, to December 31, 2019. On April 10, 2019, a notation in the CNRs of Dr. Moussa, indicated that the applicant is doing psychotherapy.

32After the 2020 subject accident, Dr. Moussa, prescribed Wellbutrin, to treat the applicant’s depressive symptoms from July 7, 2021, to January 3, 2022. On September 27, 2021, a notation in the CNRs of Dr. Moussa, indicated an online referral form was made to a psychological recovery clinic.

33The findings of the s. 25 Psychological Assessment are bolstered by Dr. Moussa’s CNRs. The applicant reported low or depressed mood at least seven times between September 16, 2020, and March 16, 2022. There are notations in the Midland Wellness CNRs where the applicant’s sleep is disturbed from July 27, 2020, to March 10, 2021. This indicates a clear and consistent pattern of reporting of psychological symptoms, post-accident.

34Dr. Goodarzi noted in her 2021 report, that the applicant was planning, and trying to start a new life and lifestyle even more productive that what he would lead prior to the 2017 car accident, when the accident happened in June 2020, and suddenly took a toll on the applicant’s condition exacerbating the lingering issues from the previous accident and bringing about additional problems. Indeed, in his own words, the applicant testified at the hearing that “due to the new motor vehicle accident, things got worse.”

35I accept the opinion of Dr. Goodarzi and find that the applicant’s pre-accident circumstances left him vulnerable. The 2020 accident was the major precipitating factor resulting in exacerbation of his anxiety, as well as new depressive symptoms. I find that the applicant’s pre-accident disposition left him vulnerable to future physical, mental, or behavioural disorders.

36The respondent relies on the Psychiatry IE Assessment conducted by Dr. R. Hines, psychiatrist report dated May 23, 2021. Following a review of the applicant’s medical history and a clinical interview, Dr. Hines concluded that he was not able to clearly establish the presence of a psychiatric illness or diagnosis as a direct result of the index subject motor vehicle accident. The duration of Dr. Hines’s assessment took a total of 50 minutes.

37Dr. Hines was unable to establish the presence of a mental health impairment because of the accident. He found no evidence of an adjustment disorder directly related to the accident. However, absent in this report was any indication that objective psychological testing was conducted, nor was there an indication of the specific tests administered. In my, view this is a fundamental weakness in the reliability of this report.

38Even though Dr. Goodarzi did not testify at the hearing, her report was admitted into evidence at the hearing. First, I place more weight upon Dr. Goodarzi’s report as she was the applicant’s treating psychologist and was familiar with the applicant. Second, without any objective psychological testing from the IE assessor, Dr. Hines, I am not persuaded that his opinion of no psychological impairment from the accident should attract more weight than the opinion of a treating doctor. Given the evidence tendered, I find that the applicant has undergone negative changes in his functionality and lifestyle due to his accident-induced mental health problems, as reflected in the extensive references to low or depressed mood in Dr. Moussa’s CNRs.

39Thus, I am persuaded that the applicant suffers a psychological impairment that would remove him from the treatment limit of the MIG.

Non-Earner Benefit

40The applicant is seeking the non-earner benefit (“NEB”) for $185.00 per week from October 5, 2020, to date and ongoing. I find that the applicant is not entitled to the NEB for this period.

41The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life because of, and within 104 weeks of, an accident.

42Subsection 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, because of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all the activities in which that person ordinarily engaged before the accident.

43“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”

44The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of their pre-accident activities to compare how much less they are able to dedicate to the same activity post- accident.

45To establish entitlement to NEB, the Ontario Court of Appeal confirmed in Heath v. Economical Mutual Insurance Company, that the analysis should include the following¹:

i. A comparison of the applicant’s activities and life circumstances before and after the accident.

ii. A consideration of pre-accident life and circumstances involves more than a snapshot of life in the timeframe immediately before the accident, but rather an assessment of the activities and circumstances over a reasonable period prior to the accident.

iii. All the pre-accident activities in which the applicant ordinarily engaged in should be considered. Greater weight may be assigned to those activities which the applicant identifies as being important in his pre-accident life.

iv. It is not sufficient to demonstrate that there were changes in post-accident life. Rather, it is incumbent to establish that those changes amounted to being continuously prevented from engaging in substantially all pre-accident activities.

v. To look at whether the applicant is “engaging in” an activity, the activity must be viewed. The way an activity is performed, and the quality of performance post-accident must also be considered.

vi. An inquiry into whether the degree of pain experienced either at the time or subsequently to the activity is such that the applicant is practically prevented from engaging in those activities.

46In support of his case, the applicant is relying on his testimony, the CNRs of Dr. Moussa, the OCF-3, completed by physiotherapist, Pullagura dated July 27, 2020, and the Activities of Normal Life Profile, dated August 18, 2020.

47On July 27, 2020, the applicant attended at Midland Wellness Centre and was examined by physiotherapist, Pullagura. Physiotherapist Pullagura completed a Disability Certificate (OCF-3) on behalf of the applicant. This OCF-3 lists the applicant’s injuries as whiplash associated disorder with a complaint of neck pain with musculoskeletal signs, headache, malaise and fatigue, nonorganic sleep disorders, dizziness and giddiness, and nervousness. The physiotherapist also noted that the applicant suffered a complete inability to carry on a normal life and a substantial inability to complete housekeeping duties. Yet, the physiotherapist also anticipated that these injuries would last nine to twelve weeks.

48On August 18, 2020, the applicant completed an Activities of Normal Life Profile form. The applicant described his pre-accident activities as getting up around at noon, he would cook or work on his computer, look for work, grocery shop, look for a place to live, play hockey, watch YouTube, and read emails. At the time this form was completed, the applicant stated his brother assists him with grocery shopping, laundry, and housework (he was residing with his brother and father at this time). He was able to complete his personal care unassisted and cooked. He reported not having a pre-accident exercise routine.

49The applicant submits that his ongoing pain has continually prevented him from engaging in substantially all these activities.

50In his IE report, Dr. Zabieliauskas noted that the applicant continues to drive, lives independently, plays videogames, watches NHL hockey, does his own laundry, cleaning, and orders meals. The applicant further reports he is usually up and out of bed by 11 a.m. and usually in bed for the night by 3 a.m.

51I am persuaded by a quote in a case that the respondent relies on, in Tribunal decision, Z. Amitofski and Traders General Insurance Company. At paragraph 14, the Tribunal stated:

I am persuaded by Adjudicator Hines in 16-003010 v. Aviva Insurance Canada when she wrote:

In order to qualify for a non-earner benefit, it is not sufficient enough for the applicant to demonstrate that she has sustained injuries, that she suffers from physical pain or that her pre-existing injuries have been aggravated. What must be proven is that the injuries have been aggravated. What must be proven is that the injuries and associated pain was directly caused by the [accident] and have significantly interfered with almost all of the applicant’s pre-accident daily activities.

52The applicant’s daily pre and post accident activities, are for the most part, the same. The applicant has not shown that he has suffered a complete inability to carry on a normal life. This is consistent with what he self-reported to Dr. Zabieliauskas.

53When I consider the evidence tendered in relation to the claim for non-earner benefits, I am not persuaded the applicant has established he suffered an impairment that continuously prevented him from engaging in substantially all the activities he was ordinarily engaged before the accident. As a result, the applicant’s claim for a NEB is denied.

Physiotherapy and Chiropractic Treatment

54Given my findings above, about the applicant’s physical impairments, I am not satisfied that the three OCF-18s for physiotherapy treatment and one treatment plan for chiropractic therapy and massage are reasonable and necessary.

55Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment because of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant because of the accident.

56In Scarlett v. Belair Insurance, the Ontario Divisional Court held that the applicant bears the onus of proving entitlement to the proposed treatment by proving that the OCF-18s are reasonable and necessary on a balance of probabilities.

57Again, given the strength of Dr. Zabieliauskas’ report and the lack of a responding s. 25 report, I conclude that the applicant’s sprains and strains, should have been resolved within six months. I am satisfied that any residual pain is a sequela of these minor injuries as outlined in s. 3 of the Schedule. As a result, I am not persuaded that these four treatment plans are reasonable and necessary pursuant to the Schedule.

Psychological Treatment and Psychological Assessment

58Given the applicant’s diagnosis of adjustment disorder with mixed anxiety, provided by Dr. Goodarzi, and the repeated self-reporting of low or depressed mood to Dr. Moussa post-accident, I am persuaded that the psychological assessment (in the amount of $1,995.33) and psychological services, (in the amount of $2,832.98) are reasonable and necessary.

59In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment.

60The applicant’s commitment to his rehabilitation is evident due to his participation in fourteen therapy sessions from January 26, 2019, to June 8, 2019. In the OCF-18, it is noted that since the 2020 motor vehicle accident, the applicant has a pre-occupation with “death by accident”, intrusively wondering whether eventually he will die in a car accident. I find that the psychological assessment for $1,995.33 is reasonable and necessary as it will determine the applicant’s ongoing psychological condition and prevent him from getting involved in deeper and chronic psychological problems.

61I find that the psychological treatment for $2,832.98 is reasonable and necessary as treatment goals listed in the OCF-18 are to minimize and ease the applicant’s stress and to treat the applicant’s adjustment disorder. I find no basis to conclude that the proposed costs of the proposed treatment are excessive.

62As stated above, I remain unpersuaded by the Psychological IE report provided by Dr. Hines, particularly because it did not include any specific reference to the objective psychological testing. Without any objective testing to undergird his conclusion that the applicant does not have a mental health diagnosis or impairment because of the accident, I place less weight upon this report.

63Conversely, the report provided by Dr. Goodarzi did include objective psychological testing results in support of her diagnosis of adjustment disorder because of the accident. Her report is bolstered by the pattern of reporting that emerged from Dr. Moussa’s CNRs. These records revealed a consistent pattern of low or depressed mood at least seven times in the period between September 16, 2020, to March 16, 2022. Given, Dr. Moussa’s familiarity with the applicant as his treating physician, I place substantial weight on his CNRs. This is a pattern I cannot otherwise ignore, especially considering the diagnosis rendered by Dr. Goodarzi.

64Given the persuasive evidence provided regarding the applicant’s moderate depression and generalized anxiety, I am satisfied the psychological assessment in the amount of $1,955.33 and psychological services in the amount of $2,832.98 are reasonable and necessary.

65Interest on these amounts shall be paid in accordance with s. 51 of the Schedule.

ORDER

66I find that:

i. The applicant’s psychological impairment is not predominantly minor, nor subject to treatment within the $3,500.00 limit of the MIG.

ii. The applicant is entitled to $1,995.33 for a psychological assessment, as per the OCF-18, submitted on December 28, 2020.

iii. The applicant is entitled to $2,832.98 for psychological services as per the OCF-18, submitted on March 3, 2021.

iv. The applicant is not entitled to NEB, in the amount of $185.00 per week from October 5, 2020, to date and ongoing.

v. The OCF-18’s for physiotherapy (submitted on August 14, 2020, November 14, 2020, and January 11, 2021) are not reasonable and necessary.

vi. The OCF-18 for chiropractic treatment and massage, (submitted on March 16, 2021), is not reasonable and necessary.

vii. The applicant is entitled to interest on overdue payments of benefits pursuant to s. 51 of the Schedule.

Released: August 23, 2023

___________________________

Anita John

Adjudicator

___________________________

Richard Warr

Adjudicator

Footnotes

1. 12009 ONCA 391 at para 50.