Licence Appeal Tribunal File Number: 21-007557/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:
Jennifer Hayles
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Jennifer Hayles, Applicant
David Carranza, Paralegal
For the Respondent:
Certas Home and Auto Insurance Company,
Michael W Chadwick, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jennifer Hayles, the applicant, was involved in an automobile accident on May 9, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2I note that the parties have addressed additional issues in their submissions, which issues are not properly before the Tribunal. If a party wishes additional preliminary issues to be decided, they must follow the appropriate procedure such as discussing them at the case conference so that they may be considered by the case conference adjudicator or filing a motion with the LAT in accordance with the rules. Neither was done in this case. No party can unilaterally add an issue in their written submissions and expect the LAT to decide the additional issue as this offends the principles of procedural fairness.
3The respondent objects to the applicant’s submission challenging the notices of denial as being non-compliant with section 38(8) of the Schedule, as a matter of procedural fairness. Although I am properly refusing to address the preliminary issue included in the applicant’s submissions since it is not properly before the Tribunal, I will respond with my consideration of the request. The preliminary issue advanced by the applicant, is whether each of the respondent insurer’s notices of denial of the treatment plans in dispute violate the notice requirements in section 38(8) of the Schedule as set out in the case conference order, and in addition, two added issues in dispute, added by way of motion.
4The applicant submits that the denials by the respondent insurer, fail to comply with the strict notice requirements under section 38(8) of the Schedule. Under section 38(8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments, and examinations set out in the treatment plan the insurer will approve or refuse to pay for. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations, or the cost of them, not to be reasonable or necessary. This notice must be provided within ten business days after it receives a treatment plan.
5Under section 38(11) of the Schedule, if the insurer fails to give a notice in accordance with section 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the proposed OCF-18, and ending on the day the insurer gives the notice required by section 38(8).
6According to the recent Ontario Court of Appeal decision, Varriano v. Allstate Ins. Company of Canada, 2023 ONCA 78, and the principles established by the Supreme Court of Canada in Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, a medical reason for a denial does not have to be provided if there was no medical basis for the denial at issue.
7The respondent submits that the denial letters at issue make clear that the insurer’s denial is based on the injuries categorized as minor and the coverage being limited to the Minor Injury Guideline (MIG), by reason of medical evidence or other reasons relating to policy limits or otherwise.
8The applicant’s submissions fail to explain how the respondent’s denials are not compliant with section 38(8) of the Schedule. I do not agree with the applicant’s submissions respecting any violation of the notice requirements under section 38(8). The applicant has failed to meet her burden to demonstrate that the insurer did not give notice in accordance with section 38(8). The applicant’s submissions respecting deficiencies with respondent notices of denial, fail to show how the notices of denial are not in conformity with section 38(8). The applicant’s submissions merely challenge the insurer’s decision without explanation for the basis for the objection with reference to the particular facts in this case. In addition, the applicant has attached to her submissions treatment plans which are not in dispute and appear to be duplicates of the treatment plans at issue, since the dates of submission are different from the dates of submission relating to the treatment plans in dispute which are set forth in the case conference report and order.
ISSUES IN DISPUTE
9The 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 in the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for physiotherapy services, proposed by Dr. Dookiesingh of Infinite HealthCare in a treatment plan/OCF-18 submitted on September 17, 2019?
iii. Is the applicant entitled to $2,523.13 for chiropractic services, proposed by Dr. Dookiesingh of Infinite HealthCare in a treatment plan/OCF-18 submitted on April 23, 2020?
iv. Is the applicant entitled to $2,460.00 for a physiatry assessment, proposed by Dr. Chen of Excel Medical Diagnostics Inc., in a treatment plan/OCF-18 submitted on January 13, 2021?
v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Aghamohseni of Excel Diagnostics Inc. in a treatment plan/OCF-18 dated on April 5, 2021 (OCF-18 dated and submitted on April 8, 2021)?
vi. Is the applicant entitled to $8,011.20 for a chronic pain treatment, proposed by Dr. Chow of Excel Diagnostics Inc. in a treatment plan/OCF-18 submitted on April 30, 2021?
vii. Is the applicant entitled to $4.11 for medication (as detailed in an OCF-6), submitted on June 9, 2022?
viii. Is the applicant entitled to $3,566.29 for psychological treatment, as proposed by Excel Medical Diagnostics Inc. in a treatment plan/OCF-18 submitted on July 5, 2022?
ix. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required and the applicant is not entitled to any treatment plans in dispute.
11The applicant is not entitled to the amount of $4.11 as a reasonable and necessary expense for medication as detailed in an OCF-6, submitted on June 9, 2022.
12Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
13The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
ANALYSIS
Pre-existing Injuries, Evidence of Physical Injuries
14The Minor Injury Guideline (MIG) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule, which includes sprains, strains, whiplash associated disorders, contusions, lacerations or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG, and under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
15If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
16Section 18(2) states that the $3,500 limit does not apply if the insured person provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if they are subject to the $3,500 limit.
17The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:
a. The insured person has a pre-existing medical condition;
b. The pre-existing medical condition was documented by a health practitioner before the accident; and
c. The insured person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the insured person is subject to the $3500.00 limit under the MIG.
18The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that their injuries are not minor or they have a pre-existing condition that would prevent maximal recovery within the MIG.
19I am not satisfied that the applicant has established on a balance of probabilities that she sustained physical injuries as a result of the accident that would warrant her removal from the MIG. The applicant has not provided sufficient evidence that her pre-existing medical conditions, as documented by a health practitioner before the accident, will prevent the applicant’s maximal recovery if she is subject to the $3500.00 limit under the MIG.
20When the applicant attended the emergency department of Lakeridge Health on the day of the accident, she stated that her pre-existing conditions consisted of hypertension and cholesterol. In a letter dated October 30, 2019, Dr. Ali Shickh, described the applicant’s pre-existing medical conditions including de quervain’s tenosynovitis, which is a swelling of the tendons along the thumb side of the wrist. The applicant took prescription arthrotec, an anti-inflammatory medication to address the de quervain’s tenosynovitis diagnosis, as stated in the clinical notes and records of the applicant’s family physician, Dr. Jagdish Chopra. In 2018, the applicant received a referral for physiotherapy by reason of her issues with de quervain’s tenosynovitis.
21None of the applicant’s pre-existing conditions were affected by the accident, as described by Alan Dookiesingh, Chiropractor, in the OCF-3 Disability Certificate where he described the physical injuries, to the applicant being to her neck and spine but not to her wrists. The applicant has not provided compelling evidence that her pre-existing medical conditions will prevent maximal recovery within the MIG if she is person is subject to the $3500.00 limit under the MIG.
22In a letter dated November 21, 2018, six months following the accident, Dr. Ali Shickh, states that the applicant’s musculoskeletal examination shows no evidence of inflammatory arthritis or deformities to the peripheral joints. Dr. Ali Shickh stated that the applicant may have some symptoms with hand function in the course of her work as a personal support worker related to the de quervain’s tenosynovitis diagnosis.
23On May 13, 2019, a few days following the accident, the applicant met with her family physician, Dr. Jagdish Chopra, describing a whiplash injury with muscle pain in her chest and abdomen. The applicant stated that x-rays taken at the hospital were negative relating to fractures or resulting damage from the accident. She was not offered prescription pain medication but she was provided with an injection of anti-inflammatory Toradol. The applicant requested a medical letter to excuse her from returning to work from May 9, 2019, to May 17, 2019. She did not return to her family physician until July 9, 2019, with medical concerns unrelated to the accident. The applicant returned to Dr. Jagdish Chopra again on October 15, 2019, with medical issues unrelated to the accident. The applicant did not mention any accident-related injuries or pain to her family physician Dr. Jagdish Chopra, at any of her ten appointments throughout the year 2020.
24The applicant did not mention accident-related pain to Dr. Chopra until April 14, 2021, almost two years following the accident. On April 14, 2021, the applicant described back pain and left arm and leg pain caused by the accident. She stated that she took non-prescription Advil to address pain. She also described physiotherapy and home exercises to address her accident-related injuries. On May 19, 2021, the applicant received a referral to Dr. Lesley S. Corrin of the Neuromuscular Clinic of Toronto and for an MRI to be taken to investigate back pain affecting her sleep. On examination, Dr. Corrin opined that the applicant’s reflexes, muscle bulk and power were within normal ranges. Dr. Corrin did not describe any accident-related injuries despite the applicant’s reports to Dr. Corrin of accident-related pain in her left shoulder, low back and left leg with no neck pain.
25Dr Raymond Zabieliauskas completed a section 44 Insurer’s Physiatry Assessment of the applicant on June 1, 2021. Dr. Zabieliauskas did not discount that the applicant continues to experience some residual pain as a result of the accident. The applicant reported to Dr. Zabieliauskas returning to work as a personal support worker within two weeks of the accident. However, Dr. Zabieliauskas opined that the applicant was safe to continue all aspects of her life, including working full-time as a personal support worker, without any physical restrictions or functional limitations. At the assessment, the applicant demonstrated a full range of motion of all upper extremity joints and the lower extremity joints, in addition, a good range of motion of the lumbosacral spine. Dr. Zabieliauskas opined that there was no evidence of any physical impairment or disability attributable to the accident that occurred two years before the time of the examination of the applicant.
26Dr. Zabieliauskas opined that the applicant’s injuries from the accident were pre-dominantly minor. In reviewing the treatment plan dated April 7, 2021, proposed by Angela Chow, Chiropractor, in the amount of $8,011.20, Dr. Dr. Zabieliauskas stated that: “It is important to point out to the chiropractor that (the applicant) is back to full work as a PSW at Extendicare Oshawa and is on no medications for pain and she is fully functional at home.” He opined that the applicant’s physical examination was devoid of any objectively quantifiable physical impairment or physical disability, which would be consistent with the initial diagnosis of soft tissue injuries in the emergency department of the hospital on the night of the accident. Dr. Zabieliauskas describes that the applicant underwent a chest and abdominal x-ray on the day of the accident that was reported as within normal limits and consistent with the collision diagnosis of soft tissue injury by the emergency room physician on the day of the accident.
Chronic Pain, Physical Injuries and the MIG
27Without a formal diagnosis, this Tribunal has held that the simple fact that soft tissue injuries do not resolve in several years is not sufficient to conclusively state that the injuries are not minor in nature. Dr. Zabieliauskas opines that the applicant made a full recovery from uncomplicated soft tissue injuries that occurred two years earlier when he completed his assessment. He opined that there is no chronic pain condition as the applicant has no residual objective organic pathology attributable to the accident. Dr. Zabieliauskas states in the assessment that the treatment plan proposing a chronic pain treatment plan is not reasonable and necessary. Dr. Zabieliauskas states in his assessment that the applicant had received a more than adequate course of medical and rehabilitation intervention as well as over-the-counter medication for what were uncomplicated soft tissue strain injuries that had fully resolved, irrespective of the applicant’s described complaints of pain.
28Dr. Yen-Fu Chen completed a section 25 Physiatry Assessment on March 1, 2021. Dr. Chen’s opinions respecting the applicant’s functionality differ entirely from those of Dr. Zabieliauskas, with Dr. Chen finding that the applicant is substantially limited in her daily employment activities and housekeeping maintenance activities without explaining how her limitations were not mentioned in the CNR’s of the family physician, Dr. Chopra, nor were the limitations described by the applicant to other physicians, nor did the limitations affect the applicant’s ability to work full-time within two weeks of the accident.
29The respondent submits that the diagnoses by Dr. Gershon before the accident, and by Dr. Chen fail to meet the onus of providing compelling medical evidence that the applicant’s injuries are outside the definition of minor injuries required to corroborate the applicant’s subjective complaints of pain. The respondent submits that Rheumatologist, Dr. Sidney Gershon provides no opinion whether the diagnosed conditions of the applicant are caused by the accident. Dr. Gershon’s reports are dated before the accident in the year 2017, when the applicant applied for a period of modified duties at her place of employment, chiefly based on the applicant’s diagnosis of de Quervain’s tenosynovitis, which as described was unaffected by the accident.
30I agree with the respondent, and I place greater weight on the opinion offered by Dr. Raymond Zabieliauskas, in his Physiatry Assessment, as opposed to the assessment by Dr Chen, for the following reasons: Dr. Zabieliauskas references the medical documentation reviewed for the purpose of his Physiatry Assessment, including diagnostic reports and x-rays from the date of the accident, rheumatology record, the physiatry report of Dr. Chen dated March 1, 2021, and the CNR’s of Dr. J. Chopra. The assessment by Dr. Chen mentions a consideration of the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, but Dr. Chen does not describe the application of the AMA Guides’ criteria to the applicant’s circumstances for the purpose of explaining his diagnosis of chronic pain syndrome. Dr. Chen also makes diagnoses he is not qualified to make relating to psychological impairments, referencing the applicant experiencing post-traumatic insomnia, anxiety and poor memory as a result of the accident. Dr. Chen opines that the cause of the applicant’s impairments and pain is directly caused by the accident, which occurred two years before his assessment.
31Dr. Chen states in his report that he undertook a clinical document review without referencing what medical records were considered as opposed to the assessment by Dr. Zabieliauskas, which includes an appendix of all medical documentation considered. Although Dr. Chen examined the applicant, much of the report is based on the applicant’s reports of pain without reference to diagnostic tests or the CNR’s of the family doctor Dr. Chopra, except for a few dates on May 13, 2019, and on August 29, 2019. He does not address the period of a year and a half in the CNR’s, throughout 2020 to April 2021, when the applicant did not address any accident-related symptoms with Dr. Chopra.
32The family physician Dr. J. Chopra has at no point in time made a formal diagnosis removing the applicant from the MIG nor has he prescribed pain medication. Upon a review of the evidence and submissions, I find that the applicant has sustained predominantly minor injuries as defined in the Schedule which are subject to the $3,500.00 funding limit provided in section 18(1). As described, the applicant’s physical injuries which are a result of the accident, have resolved and the applicant did not provide any compelling medical evidence that her pre-existing conditions will prevent maximal recovery from the minor injuries, if she is subject to the $3500.00 limit under the MIG.
33The applicant must demonstrate on a balance of probabilities that her functionality has been affected in order to be removed from the MIG. In this matter, I have been provided insufficient evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on her functionality.
34As submitted by the respondent, the characterization of the applicant’s accident-related pain as chronic does not outweigh objective test results. As noted in 16-000438 v. the Personal Insurance Company (2017 CanLII 59515), ongoing or chronic pain does not automatically remove the applicant from the MIG but rather, a significant reduction in the applicant’s functionality or the onset of psychological injuries. The applicant provided no compelling evidence of limited functionality. I find based on the totality of the evidence that the applicant did not suffer a chronic pain impairment to take her out of the MIG.
35This Tribunal has held that identifying chronic pain, without a diagnosis of chronic pain syndrome or an indication that chronic pain is the predominant injury, is not sufficient to take the applicant out of the MIG (17-0000640 v. TD Insurance Meloche Monex, 2018 CanLii 13142). An explicit diagnosis may not be necessary in the face of adequate evidence with respect to how chronic pain manifests and affects the applicant’s day-to-day life. Without a formal diagnosis, this Tribunal has refused to accept that the simple fact that soft tissue injuries do not resolve in several years as sufficient to conclusively state that they were not minor in nature.
36As described, Dr. Zabieliauskas opines that the applicant made a full recovery from uncomplicated soft tissue injuries that occurred two years before. Dr. Zabieliauskas opined that the applicant’s soft tissue injuries resulting from the accident had entirely resolved by the time of his assessment based on his examination of the applicant, a review of medical documentation and a review of diagnostic tests. He opined that there is no chronic pain condition as the applicant has no residual objective organic pathology attributable to the accident. Dr. Zabieliauskas states in his assessment that the applicant had received a more than adequate course of medical and rehabilitation intervention as well as over-the-counter medication for what were uncomplicated soft tissue strain injuries that had fully resolved, irrespective of the applicant’s described complaints of pain. Dr. Zabieliauskas states in the assessment that the treatment plan proposing a chronic pain treatment plan is not reasonable and necessary.
37For the reasons stated, I place greater weight on the findings of Dr. Zabieliauskas that the applicant made a full recovery from uncomplicated soft tissue injuries and that there is no chronic pain condition as the applicant has no residual objective organic pathology attributable to the accident. I place weight on the opinion of Dr. Zabieliauskas that the applicant does not have a chronic pain condition as opposed to the opinion and diagnosis of Dr Chen for the reasons stated.
38The applicant has failed to meet her burden to demonstrate that she experiences chronic pain syndrome. As described, the applicant’s physical injuries which are a result of the accident have resolved and the applicant did not provide any compelling medical evidence that her pre-existing conditions will prevent maximal recovery from the minor injury if the insured person is subject to the $3500.00 limit under the MIG.
Psychological Impairment and the MIG
39When the applicant went to the emergency department of Lakeridge Health on the date of the accident, she stated that she had no psychological effects as a result of the accident, and that her mood and level of anxiety were at normal levels. The applicant does not mention any psychological impairments or issues with depression and anxiety until March 2022, almost three years after the accident, when she discovers that her husband is unfortunately suffering from a terminal illness. She starts taking trazadone to address anxiety starting on March 15, 2022, as prescribed by her family physician Dr. Jagdish Chopra. Three years after the accident, the applicant undergoes a psychological assessment by Dr. Fahimeh Aghamohseni, who opines that the applicant experiences major depressive disorder, somatic symptom disorder and a specific phobia of vehicular travel as a result of the accident.
40As submitted by the respondent, following the accident, the applicant saw her family doctor, Dr. Chopra on twenty-five (25) occasions until the clinical notes and records (CNR’s) end on June 15, 2022. The applicant did not describe any psychological or psychiatric symptoms until May 2, 2022, three and a half years after the accident. Unfortunately, the applicant’s husband was diagnosed with stage four colon cancer. Dr. Chopra’s CNR’s describe that the applicant was receiving counselling for her grief and the loss of her husband. The CNR’s dated June 1, 2022, show that as a result of grief following her husband’s death, the applicant went to live with her daughter.
41The difficulty I have with Dr. Fahimeh Aghamohseni’s determination of causation is that in the previous three years following the accident and before March 2022, the applicant did not mention psychological impairments, a need for counselling, nor any issues with anxiety and depression when reporting symptoms of the accident to Dr. Jagdish Chopra. The respondent submits that the timing of the applicant’s psychological impairments coincides with the distressing event of her husband’s terminal illness and death in April 2022. It is evident that the cause of the applicant’s psychological impairment in July 2022, is solely the result of the applicant’s loss of her husband, who was also the father of her children. That Dr. Fahimeh Aghamohseni mentions the husband’s death in the report once, in passing, as submitted by the applicant, but does not attribute the applicant’s psychological difficulties as directly caused by the event of the husband’s death, but rather attributes the applicant’s psychological condition to a car accident three years earlier, results in my finding Dr. Fahimeh Aghamohseni’s psychological report being unreliable in its opinions on causation.
42The test to determine causation is the “but for” test, signifying that causation is a factual determination made on a balance of probabilities: See Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident, the applicant would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. My opinion on the lack of reliability of Dr. Aghamohseni’s report and her findings is also based on inaccuracies in the assessment. I noted information in the psychological assessment of Dr. Aghamohseni, which is not corroborated in the CNR’s of the family physician Dr. Chopra. Dr. Aghamohseni states in her report that she reviewed the CNR’s of the family doctor Dr Jagdish Chopra, however, she does not observe in the CNR’s that there is no reference to Dr Jagdish Chopra prescribing any pain medication. Dr. Aghamohseni includes in her report that the applicant has been assessed and prescribed pain medication historically by Dr. Jagdish Chopra, which is entirely incorrect, rather the applicant reports to various physicians in the CNR’s, including Dr. Jagdish Chopra, using non-prescription Tylenol or Advil when pain relief is required.
43Dr. Fahimeh Aghamohseni describes in her report that the applicant’s driving anxiety is completely limiting the applicant’s ability to transport herself in a car or be a passenger in a vehicle. Again, this is information which I would have expected in the CNR’s of Dr. Jagdish Chopra, in the three years following the accident. The report describes the applicant’s functionality dramatically limited by the accident, with the applicant unable to perform household tasks, in addition, the applicant’s ability to socialize circumvented, and the applicant is described as unable to take care of her physical and mental health. Again, none of this information is included in Dr. Jagdish Chopra’s CNR’s following the accident. Based on the noted discrepancies between the information in Dr. J. Chopra’s CNR’s and the psychological assessment by Dr. Fahimeh Aghamohseni, I find the noted psychological assessment of Dr. Fahimeh Aghamohseni to be unreliable and I do not place evidentiary weight on Dr. Fahimeh Aghamohseni’s findings.
44An additional concern that I have relates to the psychological assessment offering no indication of what level of involvement Dr. Fahimeh Aghamohseni, had in the assessment and diagnosis of the applicant. Sara Gharibi’s certification is as a registered psychotherapist, confirmed in the psychological report and on the website of the College of Registered Psychotherapists of Ontario. As a psychotherapist, Sara Gharibi is not qualified to offer a psychological diagnosis. She is only qualified to offer psychotherapy treatment. Dr. Fahimeh Aghamohseni is singularly qualified to interview and diagnose the applicant for the purpose of psychological impairments caused by the accident. Therefore, although Sara Gharibi is described as assisting Dr. Fahimeh Aghamohseni, I place less weight on the report because Sara Gharibi is not qualified to assess and diagnose the applicant for the purpose of a psychological assessment and the manner in which Sara Gharibi functioned as assisting Dr. Fahimeh Aghamohseni is not defined or described in the report. For a psychological assessment to be reliable, the interview, testing and diagnosis of the applicant must be completed by a qualified psychologist.
45I find insufficient compelling evidence demonstrating that the applicant suffers from psychological injuries as a result of the accident. Likewise, I find insufficient compelling evidence she requires psychological intervention. Upon a review of the evidence and submissions, I find that that the applicant has sustained predominantly minor injuries as defined in the Schedule which are subject to the $3,500.00 funding limit provided in section 18(1).
Is the applicant entitled to $4.11 for medication (as detailed in an OCF-6, submitted on June 9, 2022?
46The applicant is claiming expenses in the amount of $4.11 provided by way of an Expense Claim Form (“OCF-6”) issued on June 9, 2022. The respondent denial letter dated June 14, 2022, describes that the policy limits have been reached and the applicant’s injuries have been determined to be minor and treatable within the Minor Injury Guidelines.
47I can determine that the respondent is liable to pay a prescription medication if:
a. The motor accident caused the impairment that necessitates the prescription medication;
b. The prescription medication is reasonable and necessary, and
c. A regulated health professional provides the prescription.1
48The applicant does not mention any psychological impairments or issues with depression and anxiety until March 2022, when she discovers that her husband is unfortunately suffering from a terminal illness, almost three years after the accident. She receives a prescription for Trazadone to address anxiety starting on March 15, 2022, as prescribed by her family physician Dr. Jagdish Chopra.
49The prescription for the medication Trazadone was provided by a regulated health professional, Dr. J. Chopra, the applicant’s family physician on March 15, 2022. However, as stated earlier in these reasons, the Trazadone prescribed to address the applicant’s anxiety, was a prescription to address circumstantial depression and anxiety as a result of the applicant’s husband having a terminal illness resulting in his death in April 2022. The motor vehicle accident on May 9, 2019, almost three years earlier, was not the cause of the psychological impairment for which the prescription was directed, nor was it in any way a cause for the prescription medication.
50I do not find that the $4.11 for the purpose of the medication expense is a reasonable and necessary expense pursuant to the Schedule, payable by the respondent insurer since the prescription for Trazadone is not caused in any way by the accident. The expense is unrelated to the accident.
51Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required because they propose treatment outside the MIG and the $3,500.00 funding limit.
52The applicant is not entitled to the amount of $4.11 for medication pursuant to an OCF-6, submitted on June 9, 2022.
53Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
54The 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 respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
CONCLUSION AND ORDER
55I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG and that the MIG limit has been exhausted.
56The applicant is not entitled to any treatment plans in dispute, as the MIG limit has been exhausted.
57The applicant is not entitled to the amount of $4.11 for medication pursuant to an OCF-6, submitted on June 9, 2022.
58Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
59The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
60The application is dismissed.
Released: September 12, 2023
Janet Rowsell
Adjudicator
Footnotes
- 16-001809/AABS v. CUMIS General Insurance, 2017 CanLII 19204 (ON LAT), para 29.