Citation: Leo v. Economical Mutual Insurance Company, 2024 ONLAT 22-009987/AABS

Licence Appeal Tribunal File Number: 22-009987/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:

Paolina Leo

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Nivedita Misra, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1Paolina Leo, the applicant, was involved in an automobile accident on September 5, 2020, 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 Mutual 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 the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?

ii. Is the applicant entitled to $2,809.56 for chiropractic services, proposed by 101 Physiotherapy in a treatment plan dated September 16, 2020?

iii. Is the applicant entitled to $4,688.38 for psychological services, proposed by 101 Assessments in a treatment plan dated July 19, 2021?

iv. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated February 3, 2021?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to $2,809.56 for chiropractic services, $4,688.38 for psychological services, or $2,460.00 for a psychological assessment.

5The applicant is not entitled to an award or interest.

ANALYSIS

MIG

6Section 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.”

7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

8For the following reasons, I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 funding limit on treatment, which the parties agree has been exhausted.

Pre-existing condition

9I find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from a pre-existing injury or condition that precludes recovery within the MIG.

10The applicant submits that it is well documented by both the applicant and respondent that the applicant sustained a concussion before the accident, as outlined in the clinical notes and records of the applicant’s family doctor, Dr. Lawrence Sax. The applicant also relies on the disability certificate (OCF-3) completed by chiropractor Dr. Bill Nikols dated September 23, 2020 that lists one of the applicant’s conditions as post-concussive syndrome. The applicant argues that based on the nature of the accident, the diagnosis of post-concussive syndrome, and pre-existing concussion, she should be removed from the MIG.

11The respondent submits that there is no evidence the applicant was suffering from any pre-existing medical condition that prevented her from achieving maximal medical recovery under the MIG. The applicant has not produced any pre-accident treatment records pertaining to the period around the accident, and none of Dr. Sax’s clinical notes and records have been provided unredacted. The respondent argues that the only pre-accident record referencing any prior head injury comes from St. Joseph’s Health Centre dated March 7, 2019, when the applicant was diagnosed by emergency room physician Dr. Leeor Sommer with a ‘minor head injury’ after a reported fall down some stairs. There is no diagnosis a concussion or post-concussive syndrome in any of the records from St. Joseph’s, and there is no evidence that the applicant was suffering from any post-concussive issues leading up to the accident.

12I agree with the respondent’s submissions and am not persuaded by the applicant’s evidence. Apart from the diagnosis by Dr. Sommer of a minor head injury over a year before the accident, the applicant has not pointed me to any evidence that such a head injury had any impact on her daily life or function leading up to the time of the accident. The applicant relies on the OCF-3 from Dr. Nikols that lists post-concussive syndrome just two weeks after the accident, but Dr. Nikols lists that condition without any formal medical testing, substantiating evidence, or specialist consultation that would support it. As a result, I have given Dr. Nikols’ list of conditions limited weight.

13For these reasons, I am not satisfied that on a balance of probabilities the applicant suffers from a pre-existing injury that precludes maximal medical recovery within the MIG.

Psychological condition

14I find that the applicant has not established on a balance of probabilities that she sustained a psychological injury as a result of the accident that would warrant removal from the MIG.

15The applicant relies on psychological assessment report of Lital Grinberg, psychological associate, dated May 31, 2021. In that report Ms. Grinberg diagnoses her with chronic adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain, moderate, and specific phobia – underground parking garage. The applicant submits that her self-report to Ms. Grinberg included difficulty sleeping due to racing and intrusive thoughts, poor appetite, constant worry, and an inability to concentrate and remember.

16The respondent argues that there have been no post-accident records produced from the applicant’s family doctor, Dr. Sax, and no evidence that the applicant ever sought OHIP-funded treatment or consultations with respect to the accident. In addition, there were no psychological complaints recorded in any of the clinical notes and records provided by 101 Physio, the applicant’s post-accident physical therapy provider. In fact, there are no records and no mention of any psychological complaints to any other healthcare professional after the accident other than to Ms. Grinberg. Ms. Grinberg’s report does not reference any other treatment records or sources of information that she considered when making her findings. Ms. Grinberg relied solely on the applicant’s self-report. While Ms. Grinberg did do some psychometric testing, she does not discuss any validity measures, and no collateral sources were considered.

17I agree with the respondent that the applicant’s evidence is lacking. Apart from Ms. Grinberg’s report dated almost a year after the accident, the applicant has provided no corroborating evidence or clinical notes and records that mention or reference psychological symptoms, investigations, medications, psychological or psychiatric counselling or referrals after the accident. I am also mindful that Ms. Grinberg is not a clinical psychologist and given the amount of self-report relied upon and lack of corroboration for her conclusions, I have given Ms. Grinberg’s report limited weight.

18The applicant has not demonstrated that on a balance of probabilities she suffers from a psychological injury because of the accident that would warrant her removal from the MIG. I find that her predominantly minor injuries are correctly captured within the MIG.

Section 38(8)

19I find that the respondent’s explanation of benefits and notices of assessment related to the proposed treatment plans in dispute for chiropractic services, psychological services, and a psychological assessment are in compliance with section 38(8) of the Schedule.

20Section 38(8) of the Schedule requires insurers to identify the goods, services, assessments, and examinations in the treatment plan that the insurer does not agree to pay for and provide medical reasons and all other reasons why the insurer considers the treatment plan to not be reasonable and necessary.

21The applicant submits that the denial notices from the respondent for the proposed treatment and assessment plans are insufficient. As a result, they should be deemed reasonable and necessary. She argues that the denial letter dated August 3, 2021 did not include the diagnoses listed in the report from Ms. Grinberg even though it was noted that the report was reviewed. The applicant argues that the respondent relied on boilerplate language, which is not sufficient. The applicant also argues that on September 14, 2021, she received notice for a re-scheduled section 44 psychological independent examination (“IE”), but there were no medical or other reasons identified.

22The respondent submits that there is no evidence upon which the Tribunal can rely that the denials failed to comply with the Schedule, were unreasonable or ignored the limited documentation provided by the applicant. The respondent argues that the unfounded allegations are completely irrelevant to the analysis when determining MIG placement.

23While I have already determined that the applicant’s injuries are minor and therefore subject to the $3,500.00 funding limit on treatment, which the parties agree has been exhausted, I have considered the applicant’s arguments related to section 38(8). The respondent’s explanation of benefits dated August 3, 2021 and notice of examination dated August 6, 2021 in relation to the proposed $4,688.38 for psychological services lists the medical documents reviewed, namely the assessment of Ms. Grinberg, clinical notes from St. Joseph’s Health Centre dated March 2019, and the OCF-3 completed by Dr. Nikols. The respondent references medical evidence and the fact that the applicant had not complied with previous requests for medical documentation in February and March 2021. The notice also clearly sets out the name of the assessors, their location, the times of the assessments, and that the applicant’s attendance is required. It does not rely on boilerplate language as suggested by the applicant.

24I also find that the September 14, 2021 notice of examination re-scheduling the IEs related to the proposed psychological services relies on the same evidence and information as the original notice dated August 6, 2021. It does not need to be restated as no new evidence was provided or considered, and no new services are proposed. The notice was simply advising the applicant of the IE re-scheduling information. The applicant makes no specific reference to deficiencies in the other explanation of benefits or notices of assessment. As a result, I find the applicant’s arguments to be unfounded and that she has not met her onus. Not all medical evidence provided by the applicant needs to be referred to by the respondent in their notices or explanation of benefits.

25I find that the applicant is not entitled to $2,809.56 for chiropractic services, $4,688.38 for psychological services, or $2,460.00 for a psychological assessment. The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury, which has been exhausted. These treatment plans propose goods and services that fall outside of the MIG.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

Award

27The 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’s submissions are silent with respect to the issue of an award other than to refer to the totality of her submissions. The respondent submits that it was never provided with any particulars supporting an award claim. I find that the respondent has not unreasonably withheld or delayed the payment of benefits. The applicant is not entitled to an award under s. 10.

ORDER

28The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

29The applicant is not entitled to $2,809.56 for chiropractic services, $4,688.38 for psychological services, or $2,460.00 for a psychological assessment.

30The applicant is not entitled to an award or interest.