Citation: Murray v. Economical Insurance Company, 2023 ONLAT 21-006909/AABS

Licence Appeal Tribunal File Number: 21-006909/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:

Tianna Murray

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nick Iannazzo

APPEARANCES:

For the Applicant:

Davin Tamber, Counsel

For the Respondent:

Alexander Dos Reis, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Tianna Murray, was involved in an automobile accident on October 1, 2020. She was the front seat passenger in a motor vehicle that was rear-ended while stopped at an intersection. She sought benefits from the respondent, Economical Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Economical denied her claims and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The parties have acknowledged in their submissions that the remaining 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 and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,144.93 for a psychological assessment proposed by Chinguacousy Physiotherapy and Foot Clinic in a treatment plan submitted April 7, 2021 and denied April 16, 2021?

iii. Is the applicant entitled to $3,715.90 for psychotherapy treatment proposed by Chinguacousy Physiotherapy and Foot Clinic in a treatment plan submitted June 14, 2021 and denied September 15, 2021?

iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 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

3I find that:

i. The applicant does not have a minor injury as defined under the MIG as a result of a psychological impairment and therefore she is not subject to the monetary limit of the MIG;

ii. The applicant is entitled to $2,144.93 for a psychological assessment as that assessment is reasonable and necessary;

iii. The applicant is entitled to $1,995.32 for part of the psychotherapy treatment that is found to be reasonable and necessary;

iv. The applicant is not entitled to an award under s. 10 of O. Reg. 664 because the respondent did not unreasonably withhold or delay payments to the applicant; and

v. The applicant is entitled to interest in accordance with the Schedule.

PROCEDURAL ISSUES

4The applicant submits that the evidence of Dr. Miller, the respondent’s assessor, should be excluded because the respondent failed to produce Dr. Miller’s clinical notes and records in accordance with the Case Conference Order (“CCO”) and the applicant would be prejudiced by allowing Dr. Miller’s evidence.

5The CCO required the respondent to make the best effort to provide the clinical notes and records by May 6, 2022. The respondent’s assertion that the records were requested on April 29, 2022, is not correct. On April 29, 2022, an employee of the respondent asked another employee to assist in requesting the records, but no request to Dr. Miller was made until over 3 months later on August 2, 2022. Thereafter the respondent made follow-up requests, and received the records on November 1, 2022, but did not forward them to the applicant until November 16, 2022. The applicant’s written hearing submissions were due on October 31, 2022, so the submissions were made without having the opportunity to review Dr. Miller’s records.

6I agree with the applicant that the respondent did not comply with the Case Conference Order. However, I find that the applicant was not prejudiced because in her Reply dated November 23, 2022, she made submissions regarding Dr. Miller’s clinical notes and records.

7Accordingly, I am not excluding Dr. Miller’s evidence, and will consider it together with the applicant’s Reply submissions.

ANALYSIS

The Minor Injury Guideline (MIG)

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 impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that she should be removed from the MIG on the basis of her pre-existing condition and her psychological impairment.

11The respondent submits that the applicant did not meet her onus of proving that she should be removed from the MIG.

12For the reasons that follow, I find that the applicant has proven on a balance of probabilities that she should be removed from the MIG because of a psychological impairment. Accordingly, it is not necessary to determine whether the applicant has a pre-existing medical condition within the meaning of s. 18(2) of the Schedule.

13I considered all the submissions and case law of the parties. Although my decision does not refer to every submission or case presented, they were all considered.

Does the applicant have a psychological impairment to remove her from the MIG?

14I find that the applicant has proven on a balance of probabilities that she should be removed from the MIG because of a psychological impairment.

15Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that she has a psychological impairment as a result of the accident.

16The applicant submitted in her OCF-1 that she was experiencing flashbacks of the accident, nervousness while riding in a vehicle, and anxiety. The applicant relies on the clinical notes, records and a letter from her family physician, Dr. Altitanchy, a pharmacy’s prescription summary, a s. 25 Psychological Assessment Report of Dr. Steiner, Psychologist, and Ms. Ashraf, Psychotherapist, and an OCF-3 from Dr. Chan, Chiropractor.

17The respondent submits that the applicant did not meet her onus of proving that she suffered a psychological impairment that should remove her from the MIG.

18The respondent submits that the applicant lacks credibility because of inconsistent information she provided to different parties (i.e. Mr. Miller and Ms. Ashraf). Since the applicant is not reliable, the respondent asserts that Dr. Altitanchy’s evidence and the s. 25 Psychological Assessment Report should be given no weight since they were based upon the applicant’s self-reporting. The respondent also submits that Dr. Altitanchy’s recommendations and diagnoses merit no weight because the doctor jumped to conclusions, relied upon the applicant’s self-reporting to the exclusion of other evidence, did not carry out objective psychological testing, and the doctor’s clinical notes and records lacked details and explanations. Furthermore, it submits that Dr. Altitanchy’s letter dated May 17, 2022 should also be given no weight because no contemporaneous records were provided. And, lastly, that the OCF-3 from Dr. Chan, chiropractor, should be given no weight since he was not qualified to make a psychological diagnosis.

19The respondent relies upon the insurer’s examination conducted by Dr. Miller where the applicant was found not to have sustained any psychological injuries because of the accident and had no DSM-recognized impairments, and her injuries fell within the MIG. Furthermore, the respondent submits that the applicant’s s. 25 Psychological Assessment Report merits no weight because Dr. Steiner lacked involvement, there were predetermined conclusions, and there was no rebuttal to Dr. Miller’s report.

20The respondent refers to numerous Tribunal decisions to support various submissions it has made.

21After considering all the evidence, submissions and the Tribunal decisions put forward by the respondent, I do not agree with the respondent, nor am I bound by previous Tribunal decisions. I find that the applicant has met her burden of proof for the reasons set out below.

22Firstly, I am not persuaded by the respondent’s submissions that the applicant is not credible. I believe she is credible. It is not surprising that a person will not use consistent terminology with everyone she is questioned by, especially considering that questions and context may have varied. Furthermore, overall, the discrepancies raised by the respondent are not material, and do not detract from the essence of the applicant’s evidence, namely that she has anxiety, it got worse after the accident, and it continues to impact her to date, including while being in a vehicle.

23Secondly, I am not persuaded by the respondent’s submissions that the family doctor, Dr. Altitanchy, is not credible. I believe she is credible. The respondent did not submit any compelling evidence that the doctor jumped to conclusions, excluded other evidence, or did not act credibly in carrying out her professional duties. Dr. Altitanchy has treated the applicant from at least 6 years prior to the accident and then regularly after the accident. The doctor’s notes and records are sufficiently detailed. The notes make specific references to the motor vehicle accident, how the applicant’s anxiety got worse, the pertinent diagnoses, appropriate prescriptions, and recommendations to see a psychologist and get treatment. For example:

i. Dec. 16, 2020 - “lots of anxiety – happened after the MVA – very anxious – nervous to get into a car – prefers to walk – been using a bus/walking. SEE PSYCHOLOGY. Rx: Meloxicam 7.5 mg; start psychotherapy ANXIETY/MVA

ii. Feb. 11, 2021 – she gets panic attacks; dx: anxiety; rx: Ativan prn; counselling

iii. July 22, 2021 – anxiety and depression stable; continue meds; counselling as needed; rx: Ativan 0.5 mg

iv. Jan. 18, 2022 – palpitation even at rest; mild light-headed; very tired; her anxiety is worse since the car accident; dx: palpitation/anxiety; rx: counselling; start Prozac 20 mg.

24Regarding Dr. Altitanchy’s letter dated May 17, 2022, I am not persuaded that it should be given no weight because there are no contemporaneous clinical notes and records. The letter essentially summarizes what has already been revealed in the submitted clinical notes and records and adds that Escitalopram has been prescribed daily for the applicant’s anxiety.

25Overall, I find Dr. Altitanchy’s evidence consistent and compelling.

26It is noteworthy that the applicant filed an OCF-18 recommending a psychological assessment not very long after Dr. Altitanchy’s diagnosis of anxiety, prescription for Ativan, and a recommendation for counselling.

27Thirdly, I am not persuaded by the respondent’s submission that Dr. Miller’s evidence should be preferred over Dr. Altitanchy’s. Dr. Miller spent only 1 hour with the applicant and found that she did not sustain any psychological injuries as a result of the accident and had no DSM-recognized impairments, and therefore her injuries fell within the MIG. As already noted, I found Dr. Altitanchy credible, and prefer her evidence since she has treated and known the applicant since 2014 and would know the applicant’s health and personality better than Dr. Miller. I do not agree with the respondent’s submission that Dr. Altitanchy was merely relying upon the applicant’s self-reporting and jumping to conclusions. No compelling evidence was submitted to indicate that Dr. Altitanchy did not act professionally in rendering medical diagnoses, prescribing medications, and recommending a psychological assessment and psychotherapy.

28Fourthly, the pharmacy’s prescription summary shows that the applicant is filling her prescriptions, including her psychotropic medications. It is noteworthy that prior to the accident, the applicant was not prescribed any psychotropic medications, but after the accident she was. The respondent suggests that the applicant was not ingesting her psychotropic medications because in Dr. Stefanac’s report the only medication referred to was Advil and Tylenol. This report was addressing an OCF-18 for chiropractic services and massage therapy. In the section “Current Complaints” Advil and Tylenol is referenced specifically in connection with physical pain. It is unclear whether the applicant was asked about medication for psychological impairments. I am not persuaded by the respondent’s speculative submission that the applicant was not taking her psychotropic medications.

29Lastly, the section 25 Psychological Assessment Report of Dr. Steiner, Psychologist, and Ms. Ashraf, Psychotherapist, diagnosed the applicant with an adjustment-like disorder with a prolonged duration of more than six months, specific phobia, situational (driver and passenger related), and features of PTSD. The Report recommended that the applicant undergo 12 sessions of cognitive-behavior therapy. The respondent submits that this report merits no weight because the OCF-18 did not propose a psychotherapist, it is unclear what the respective involvement of Dr. Steiner and Ms. Ashraf was, there were predetermined conclusions, and there was no rebuttal to Dr. Miller’s report. The respondent relies upon Subramanian v Aviva General Insurance, 2022 CanLII 20126 (ON LAT) as authority to support this position. The applicant submits that Subramaniam is distinguishable because in this case the OCF-18 did state that a physiotherapist would be involved, and in the Report itself it states Ms. Ashraf’s involvement consisted of interviewing and assessing the applicant on April 30 and May 7, 2021. The applicant also submits that the respondent has presented no evidence that there was a predetermined conclusion. Overall, I am not persuaded by the respondent that the Report should be given no weight.

30I agree with the respondent that Dr. Chan, chiropractor, is not qualified to opine on psychiatry, and give that evidence no weight.

31However, I find that the applicant has proven on a balance of probabilities that she should be removed from the MIG because of a psychological impairment.

Is the applicant entitled to $2,144.93 for a psychological assessment?

32I find that the applicant is entitled to $2,144.93 for a psychological assessment as that assessment is reasonable and necessary.

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.

34The applicant submitted the OCF-18 for a psychological assessment on March 31, 2021. The respondent denied the treatment plan. The applicant proceeded with the assessment, which was conducted by Dr. Steiner and Ms. Ashraf.

35The applicant submits that the OCF-18 for a psychological assessment was submitted on March 31, 2021 and this was contemporaneous with Dr. Altitanchy’s recommendation for a psychology consultation. Further, it is contemporaneous with when the applicant commenced pharmacotherapy treatment for her psychological injuries.

36The respondent submits that the applicant has failed to meet her burden of proof. The respondent argues that the applicant’s only evidence is that the OCF-18 was drafted contemporaneously with Dr. Altitanchy’s recommendations, and since Dr. Altitanchy’s evidence merits no weight there is no evidentiary support for the assessment. Furthermore, the respondent argues that Dr. Altitanchy’s letter dated May 17, 2022 was not contemporaneous and the section 25 Psychological Assessment Report is not worthy of weight.

37I am not persuaded by the respondent’s submissions. I have already found Dr. Altitanchy credible and her evidence compelling, and the section 25 Psychological Assessment Report worthy of weight.

38Accordingly, I find that the applicant is entitled to $2,144.93 for a psychological assessment as it is reasonable and necessary.

Is the applicant entitled to $3,715.90 for psychotherapy treatment?

39I find that the applicant is entitled to $1,995.32 for psychotherapy treatment as part of that treatment plan is reasonable and necessary.

40The respondent made the same arguments set out in paragraph 36 above, and as already noted I am not persuaded by the respondent’s submissions. Having found that the applicant has a psychological impairment it is appropriate that she get treatment. Dr. Altitanchy recommended treatment. The s. 25 Psychological Assessment Report and the OCF-18 dated June 3, 2021 recommend treatment. I find that the treatment plan is partially reasonable and necessary for the reasons that follow.

41The respondent submits that if it is held that the treatment is reasonable and necessary, the following items are not payable as they are unnecessary or duplicative: $897.72 for “preparation, service”, $149.61 for “planning, service” and $673.25 for “documentation, support activity”. The respondent relies upon J.A. v. Aviva Insurance Company, 2020 CanLII 12726 (ON LAT), to support its submissions. The applicant made no submissions disputing the respondent’s argument.

42The onus is on the applicant to prove that not only are the benefits reasonable and necessary but that the costs of the treatment plans are reasonable. While the applicant submitted that psychological treatments are necessary, she did not rebut the respondent’s submission with regards to the costs for “preparation, service”, “planning, service” and “documentation, support activity”. I find that the applicant failed to demonstrate how the disputed costs are reasonable.

43I agree with the respondent that the applicant is not entitled to $1,720.58 ($897.72 + $149.61 + $673.25) because these costs are unnecessary and/or duplicative, and accordingly find that the applicant is entitled to $1,995.32 for psychotherapy treatment as being reasonable and necessary.

Interest

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest in accordance with s. 51 of the Schedule.

Award

45The 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. The applicant has the burden of proof.

46I find that the applicant is not entitled to an award because the applicant did not provide any evidence to support a finding that the respondent unreasonably withheld or delayed the payment of benefits. Accordingly, I find that the applicant is not entitled to an award.

ORDER

47As a result of the above, I find that:

vi. The applicant does not have a minor injury as defined under the MIG as a result of a psychological impairment and therefore she is not subject to the monetary limit of the MIG;

vii. The applicant is entitled to $2,144.93 for a psychological assessment as that assessment is reasonable and necessary;

viii. The applicant is entitled to $1,995.32 for psychotherapy treatment as part of the treatment plan is reasonable and necessary;

ix. The applicant is not entitled to an award under s. 10 of O. Reg. 664 because the respondent did not unreasonably withhold or delay payments to the applicant; and

x. The applicant is entitled to interest in accordance with the Schedule.