Licence Appeal Tribunal File Number: 22-012564/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:
Fatima Medina Acosta
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Nadia Mauro
APPEARANCES:
For the Applicant: Piera A. Segreto, Counsel
For the Respondent: Ainsley Shannon, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Fatima Medina Acosta, the Applicant, was involved in an automobile accident on May 14, 2021, 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, Economical 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:
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 Minor Injury Guideline limit (“MIG”)? Note: The parties agree the MIG limits have been exhausted.
ii. Is the Applicant entitled to $2,200.00 for a psychological assessment, proposed by New Age Specialized Assessments Ltd. in a treatment plan/OCF-18 (“plan”) dated September 23, 2022?
iii. Is the Applicant entitled to $1,269.99 for physiotherapy services, proposed by Align Physio and Wellness Inc. in a plan dated September 27, 2022?
iv. Is the Applicant entitled to $3,351.90 for hospital expenses, submitted by invoice on May 6, 2022?
v. Is the Applicant entitled to $791.00 for Claimdocs physician visits, submitted by invoice on July 8, 2022?
vi. Is the Applicant entitled to $4,350.21 for physiotherapy services, proposed by Align Physio and Wellness Inc. in a plan dated November 19, 2022?
vii. Is the Applicant entitled to $2,950.00 for a chronic pain assessment, proposed by New Age Specialized Assessments Inc., in a plan dated December 20, 2022?
viii. Is the Applicant entitled to $2,745.32 for a psychological assessment, proposed by New Age Specialized Assessments Inc., in a plan dated, December 20, 2022?
ix. Is the Respondent liable to pay an award under s. 10 of 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
3The Applicant’s injuries are not predominantly minor, and therefore, she is removed from the MIG.
4The Applicant is entitled to the treatment plans for a psychological assessment, psychological services, and hospital expenses, plus interest.
5The Applicant is not entitled to the treatment plans for physiotherapy services, the Claimdocs physician visit expenses, and a chronic pain assessment.
6The Respondent is not liable to pay an award.
ANALYSIS
The Applicant is removed from the MIG
7I find that the Applicant has proven on a balance of probabilities that she has sustained psychological impairments as a result of the accident that warrants her removal from the 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 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 has sustained a psychological impairment that would warrant removal from the MIG
10I find that the Applicant has provided sufficient evidence to demonstrate that she sustained psychological impairments, as a result of the subject accident, that warrant removal from the MIG.
11An applicant may be removed from the confines of the MIG should they have sustained a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule. A psychological impairment must be more than mere clinically related sequelae of a minor injury.
12The Applicant submits that as a result of the subject accident, she has developed severe psychological injury, such as Major Depressive Disorder, moderate, single episode, Posttraumatic Stress Disorder, with vehicular anxiety, and Somatoform Pain Disorder, persistent, moderate with predominant pain. The Applicant relies on the clinical notes and records (“CNRs”) of physician, Dr. Laura Mitchell, and psychological report of Dr. Sandra Sagrati, dated November 25, 2022.
13The Respondent argues that the Applicant only reported her psychological impairments over a year after the subject accident; there is limited evidence relied upon, and it is entirely based on the Applicant’s self-report; and her level of activity is not congruent with someone suffering from a psychological impairment. The Respondent relies on the report of s. 44 psychological assessor, Dr. Douglas Saunders, dated January 25, 2023, who opined that there was no credible evidence of accident-related psychological impairment.
14I find that the evidence shows, on a balance of probabilities, that the Applicant has sustained a psychological impairment.
15The Applicant first presented to Dr. Mitchell on June 8, 2022, complaining of accident-related physical injuries and that she “hasn’t biked since due to mental/anxiety.” On July 5, 2022, the Applicant reported “huge depression” after the accident to Dr. Mitchell who subsequently queried adjustment disorder with improving depressive symptoms, but ongoing anxiety symptoms. The Applicant was referred for mental health counselling.
16While I appreciate the Respondent’s argument that the Applicant only reported psychological complaints over a year after the subject accident, I note that the Applicant had recently moved to Canada a few months prior to the subject accident and did not have access to government funded OHIP. As such, I am not persuaded by the Respondent’s argument that the Applicant’s gap in medical attendance, between the date of accident and the first report to Dr. Mitchell, shows a lack of psychological impairment. This would be to disregard the Applicant’s financial constraint with respect to receiving healthcare or the ability to report symptoms.
17With respect to the reports of the psychologists, Dr. Sagrati, in her report dated November 25, 2022, diagnosed Major Depressive Disorder, Moderate, Single Episode, Posttraumatic Stress Disorder, and Somatoform Pain Disorder, Persistent, Moderate with predominant pain. Dr. Saunders, on the other hand, found that the Applicant’s results indicated no credible evidence of any psychological impairment. Dr. Saunders relied on the Personality Assessment Inventory (PAI), which indicated that the Applicant “tended to portray herself in an especially negative or pathological manner. The test results involve considerable distortion and do not provide an accurate reflection of the [Applicant’s] objective clinical status.”
18I place more weight on the report of Dr. Sagrati for a number of reasons. First, it would appear there is a more comprehensive investigation completed by Dr. Sagrati, noting several diagnostic testing measures as: Beck Depression Inventory-II (BDI-II), the Beck Anxiety Inventory (BAI), PTSD Checklist for DSM-5 (PCL-5), Pain Catastrophizing Scale (PCS), Pain Patient Profile (P-3), The Miller Forensic Assessment of Symptoms Test (M-FAST), and the PAI. Dr. Saunders assessed the Applicant using three diagnostic testing measures: the PAI, DSM-V Depression Adult Scale, and Multi-Dimensional Anxiety Questionnaire.
19Further, Dr. Saunders’ report is vague regarding his psychometric testing of the Applicant. For example, the PAI test analysis refers to ‘the evidence’ but does not include an explanation or a copy of the evidence constituting the considerable distortion of the Applicant’s objective clinical status, as mentioned above. The Applicant submitted that the Respondent failed to produce the CNRs of Dr. Saunders, as ordered by the case conference report and order. The CNRs of Dr. Saunders could have helped support his findings considering the drastic departure from the findings of Dr. Sagrati. As such, I am less persuaded by Dr. Saunders’ report given the vagueness of the PAI test conclusions and this assessor’s reliance of the PAI test results for the remainder of the psychometric tests.
20Lastly, Dr. Sagrati specifically noted in her report, that although the PAI was attempted during the Applicant’s psychological assessment, it was not completed “due to the patient’s difficulty with comprehension of the context of the dictated questions.” There is no discussion within Dr. Saunders’ report that addresses whether the Applicant was able to comprehend the PAI, despite Dr. Saunders’ apparent review of Dr. Sagrati’s report indicating the restriction. Instead, Dr. Saunders administered the PAI and relied on the negative distortion as justification for “no credible evidence” despite test results indicating a significantly elevated level of depressive symptoms and several aspects of anxiety. Once again, I am less persuaded by Dr. Saunders’ report.
21The Applicant, in this respect, has met her onus of proving that, on a balance of probabilities, she has suffered from a psychological impairment as a result of the accident. Therefore, she is removed from the MIG on this basis.
22Having removed the Applicant from the MIG on the basis of s. 18(2) of the Schedule, I therefore do not need to decide the Applicant’s other claims to be removed (i.e., alleged concussion or alleged fracture).
23To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the Applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the Applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Issues 2 & 8 – Treatment and Assessment Plans (OCF-18s) for Psychological Assessment and Psychological Treatment
24I find that the Applicant has proven, on a balance of probabilities, that the OCF-18s for psychological assessment and psychological treatment are reasonable and necessary.
25The OCF-18, dated September 23, 2022, submitted by Dr. Sagrati for psychological assessment seeks to qualify the severity of the Applicant’s presenting problems and make treatment recommendations. As stated in paragraphs 12 and 15 above, the Applicant has complained to Dr. Mitchell of accident-related psychological impairments and has been diagnosed by Dr. Sagrati with Major Depressive Disorder, moderate, single episode, Posttraumatic Stress Disorder, with vehicular anxiety, and Somatoform Pain Disorder, persistent, moderate with predominant pain. Moreover, given that I have found that the Applicant has suffered an accident-related psychological impairment, largely on the basis of Dr. Sagrati’s November 25, 2022, psychological assessment, I find that this assessment plan is reasonable and necessary.
26I note that the OCF-18, dated December 20, 2022, appears to be for psychological services, not for a psychological assessment as indicated on the case conference report and order. In any event, the OCF-18, dated December 20, 2022, proposes 12 psychological counselling sessions completed by Registered Social Worker, Blake Anderson and is made by the recommendation of Dr. Sagrati within her November 25, 2022, report. Applying the same reasoning as above, and that both Dr. Mitchell and Dr. Sagrati have made recommendations for psychological treatment, I find that this treatment is reasonable and necessary.
27Given the foregoing, the Applicant is entitled to the psychological assessment, dated September 23, 2022, and the psychological services, dated December 20, 2022.
Issue 3 & 6 – OCF-18 for physiotherapy services
28I find that the Applicant is not entitled to the two treatment plans for physiotherapy services.
29The treatment plans set goals of pain reduction, increased range of motion, increase in strength, and to return to activities of normal living, pre-accident work activities, and modified work activities. They also indicate that the Applicant has “pain with bending, twisting, lifting, carrying, pushing as well as prolonged sitting/weight-bearing makes it difficult for the patient to complete tasks. Aggravated with R arm activities including reaching, gripping, pulling.”
30I find that there is a lack of contemporaneous or compelling evidence that would support the need for physical therapy for any of the alleged impairments as indicated on the treatment plans.
31For example, in her submissions, the Applicant grouped these two treatment plans together and the same evidence and arguments were presented to establish that these plans are reasonable and necessary. The Applicant submits that the treatment plans for physiotherapy services dated September 27, 2022, and November 19, 2022, by Dr. Malatesta report a diagnosis of concussion. The Applicant then refers to a s. 44 orthopedic report, dated December 28, 2022, by Dr. Vir Sennik, and argues that this assessor did not assess for concussion, and as such, there is an uncontradicted diagnosis of concussions with no refuting evidence. However, it is unclear from the Applicant’s submissions in what way these proposed treatment plans for physiotherapy are reasonable and necessary with respect to the alleged concussion. Nor does the Applicant make submissions on whether the plans are reasonable or necessary with respect to the other listed impairments such as: sprain/strain of the cervical spine, thoracic spine, lumbar spine, shoulder joint, elbow, hip, and rotator cuff syndrome. I am also not pointed to any specific treatment addressing the alleged concussion.
32Moreover, on June 8, 2022, the Applicant presented to Dr. Mitchell complaining of right-handed pain, pain to the right forearm that can radiate to the shoulder into the head, and left knee injury. Dr. Mitchell opined that the soft tissue injuries to the Applicant’s right forearm and left knee that have not fully resolved and recommended physical therapy. There does not appear to be any concussion complaints or recommendations related to a concussion in Dr. Mitchell’s CNRs. The Applicant appears to have attended Align Physio & Wellness a few months later. The final CNRs from October 22, 2022, to November 19, 2022, report that the Applicant ‘feels better’. I am not pointed to any further CNRs from Dr. Mitchell that would support the need for the proposed treatment plans.
33Additionally, I give significant weight to the s. 44 report of Dr. Sennik, as this assessor was asked to opine on the subject treatment plans. Dr. Sennik reported that the Applicant suffered soft tissue injuries to her shoulder, knee, and right forearm as a result of the accident. This assessor opined that the Applicant has achieved maximum medical recovery.
34Therefore, I find that the Applicant has not proven, on a balance of probabilities, that the two treatment plans for physiotherapy services are reasonable and necessary.
Issue 7 - OCF-18 for a Chronic Pain Assessment
35I find that the Applicant has not proven, on a balance of probabilities, that a chronic pain assessment is reasonable and necessary.
36The Applicant submits that due to her lack of access to medical care through OHIP, she could not receive physician-based treatment. The Applicant further submits that the diagnosis of concussion made by Dr. Malatesta, was confirmed by physician, Dr. Joseph Wong and should be given weight. The Applicant relies on the subject OCF-18, dated January 11, 2023, completed by Dr. Wong, which notes that the Applicant continued to experience ongoing pain symptoms that affect her quality of life and ability to complete daily activities.
37The Respondent submits that the Applicant does not suffer from chronic pain because:
i. The Applicant has received minimal treatment;
ii. There is no evidence to support deconditioning and Dr. Sennick’s physical testing was normal; and
iii. The Applicant wrote exams in the week after the accident, graduated on time, obtained a new job after the accident, and maintained relationships with friends.
38The Applicant heavily relies on the alleged diagnosis of a concussion throughout her submissions as a reason that the treatment plan for a chronic pain assessment is reasonable and necessary. I find that an alleged diagnosis, based off the fact that it has been included in an OCF-18, is not sufficient on its own, to satisfy the need for a chronic pain assessment. The Applicant must provide contemporaneous and compelling evidence to support a finding that the proposed treatment plan is reasonable and necessary.
39As discussed above at paragraph 16, I do not agree with the Respondent’s position that the Applicant sought minimal medical treatment after the accident, as she was limited financially and did not have access to OHIP funded services. However, on review of the treatment that the Applicant did receive, she reported that she felt better, as indicated in the CNRs of Align Physio & Wellness. Additionally, Dr. Sennick opined that the Applicant reached maximum medical recovery, marking prognosis for recovery at or around 9 to 12 weeks, from an orthopaedic perspective. Moreover, while Dr. Mitchell reported soft tissue injuries, there does not appear to be any concussion related complaints, recommendation, or referral in this physician’s CNRs. Similarly, there is no reference or query for chronic pain.
40I am also not persuaded by the Applicant’s self-reported and somewhat inconsistent functional ability complaints prove that the proposed chronic pain assessment is reasonable and necessary. For example, Dr. Sagrati reported that the Applicant manages to cook and clean, albeit with taking breaks, and that following her workday, she goes straight to sleep. To Dr. Saunders, she reported she performs light versions of household chores and is independent for personal activities of daily living. There does not appear to be work-related complaints. To Dr. Sennick, she reported that she cannot cook or clean the dishes but is able to engage in basic activities of daily living, and there are no reported work-related complaints.
41I find that the Applicant has not proven, on a balance of probabilities, that the OCF-18 for a chronic pain assessment is reasonable and necessary.
Issue 4 - Hospital Expenses
42The OCF-6, dated May 6, 2022, includes hospital expenses in the amount of $6,111.89, for attendances and treatment at Toronto Western Hospital, on May 14, 15, and 21, 2021.
43The Applicant submits that the $6,111.89, for hospital expenses incurred, are reasonable and necessary. The Applicant submits that the Respondent was immediately made aware that she did not have access to OHIP, yet the Respondent ignored this expense and made payment to their ‘preferred service provider’ first, instead of the remaining hospital balance of $3,351.90.
44The Respondent submitted that the Applicant requested confirmation of how much of the hospital invoice it would cover, on December 1, 2021, and was advised that if she did not intend to continue the treatment approved to date, she could apply the remainder of her MIG limits towards the hospital invoice. The Respondent submits that on May 6, 2022, the Applicant submitted the hospital invoice, and it was promptly paid to the MIG limit.
45Review of the CNRs of Toronto Western Hospital confirm that expenses incurred were in direct relation to the subject accident. Moreover, as it is clear that the Applicant did not have access to OHIP funded services, I find that the hospital expenses are reasonable and necessary.
46As such, the Applicant is entitled to the payment for the remainder of the Hospital Expenses.
Issue 5 – Claimdocs physician visits expense
47The Applicant has not made submissions on this issue for me to consider. As such, I find that the Applicant has not demonstrated, on a balance of probabilities, that she is entitled to the Claimdocs physician visits expense.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
49The Applicant is entitled to interest on the outstanding balances for the psychological assessment and psychological services, and the hospital expenses, only.
Award
50The 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.
51The Applicant submits that the Respondent was misleading and negligent in its representation. She was advised in December 2021 that the “limits under our policy are $3,500.00”, not that she was under the MIG, and the Respondent placed its ‘preferred provider’ before the payment of the hospital expenses. Additionally, the Respondent was stubborn, unreasonable, and despite having received medical information from the Applicant, denied treatment.
52The Respondent submits that on June 16, 2021, email correspondence was sent to the Applicant outlining the MIG limits, to which she replied on June 18, 2021. Moreover, the Respondent sent further correspondence on September 7, 2021, indicating her impairment was a ‘minor injury’.
53I do not find that the Respondent acted unreasonably. I agree with the Respondent with respect to the disclosure of the MIG limits. I do not find anything misleading about the Standard Benefits Statement (“SBS”) provided to the Applicant on September 7, 2021. The SBS clearly indicates the Applicant’s impairment is a “Minor Injury ($3,500)” and explains on the following page that, “all minor injuries are subject to a $3,500 limit regardless of coverage purchased.” This is followed by a chart categorizing the coverage purchased by an insured and the corresponding monetary limits per impairment category.
54I also do not agree with the Applicant that the Respondent paid their ‘preferred provider’ before the payment of the hospital expenses. The Respondent advised the Applicant from the outset that there was a potential priority issue with respect to the coverage she may receive. It appears that once the priority issue was resolved, the Respondent took appropriate steps to advise the Applicant of her options with respect to the payment of the hospital expense. Despite being informed she could use the remainder of the MIG limits as payment towards her hospital bill, the Applicant did not send the invoice to the Respondent until months later.
55Moreover, with respect to the denial of the psychological assessment and services, I am also not persuaded that the Respondent acted unreasonably in its denials, such that the Respondent’s conduct rose to a level that would substantiate the request for an award.
56Given the foregoing, I find that the Applicant is not entitled to an award.
ORDER
57For the reasons outlined above, I find that:
The Applicant sustained a psychological impairment as a result of the accident and, therefore, she is removed from the MIG;
The Applicant is entitled to the following treatment plans, including interest:
a. Psychological Assessment, dated September 23, 2022;
b. Psychological Services, dated December 20, 2022; and
c. Hospital expenses, invoice dated May 6, 2022.
- The Applicant is not entitled to the following treatment plans:
a. Physiotherapy services, dated September 27, 2022;
b. Physiotherapy services, dated November 19, 2022;
c. Claimdocs physician expenses; and
d. Chronic pain assessment, dated December 20, 2022.
- The Respondent is not liable to pay an award.
Released: October 28, 2024
Nadia Mauro
Adjudicator