Licence Appeal Tribunal File Number: 22-010097/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:
Sasa Puhalo
Applicant
and
The Personal Insurance Co.
Respondent
DECISION
ADJUDICATOR: Emily Morton
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Aly Pabani, Counsel
HEARD: In Writing
OVERVIEW
1Sasa Puhalo, the applicant, was involved in an automobile accident on September 3, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (Schedule). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (Tribunal) for resolution of the dispute. Following a case conference among the parties on May 1, 2023, the dispute was scheduled to be adjudicated by way of a written hearing.
ISSUES
2The issues to be decided in the hearing 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 (MIG) limit?
ii. Is the respondent entitled to $2,200.00 for a psychological assessment proposed by Health Pro Wellness in a treatment plan dated December 3, 2020?
iii. Is the applicant entitled to $3,566.29 for psychological services proposed by Health Pro Wellness in a treatment plan dated December 27, 2020?
iv. Is the applicant entitled to $2,115.16 for chiropractic services proposed by Health Pro Wellness in a treatment plan dated January 12, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find the applicant has not met the onus of proving his accident-related impairments warrant removal from the MIG. I therefore find he is not entitled to payment of the three disputed treatment plans, nor interest, nor a special award.
ANALYSIS
Overview
4The applicant was the driver of a vehicle that was rear ended while in slow traffic. The air bags did not deploy, and he did not strike his head. The applicant was 33 years old at the time and employed full-time as a mechanic. He returned to work two days after the accident.
5The applicant visited a walk-in medical clinic the day after the accident. He reported neck strain and was referred for an x-ray. The results of the x-ray for the applicant’s cervical spine were normal. The doctor at the clinic also prescribed physiotherapy, and the applicant attended Health Pro Wellness 22 times in 2020 and 20 times in 2021 for physio and chiropractic treatment. The respondent has paid $2,845.00 toward medical rehabilitation benefits to date, for chiropractic and minor injury treatment. It is agreed there is $665.00 remaining within the MIG limits.
6On December 5, 2020, a psychologist, Dr. Aghamohseni, submitted a treatment plan for $2,200.00 for a psychological assessment. The December 5, 2020, treatment plan states the applicant submitted to a brief interview two days before where it was determined he presented sufficient psychological difficulty to warrant a more comprehensive assessment. The respondent denied the December 5, 2020, treatment plan on December 15, 2020, citing the applicability of the MIG.
7On December 27, 2020, the psychologist submitted an OCF-18 for a psychological treatment plan. The psychologist submitted a psychological assessment report (the report) pursuant to s. 25 of the Schedule in support of the treatment plan. The respondent denied this treatment plan on January 15, 2021, citing the applicability of MIG.
8The applicant submitted a treatment plan dated January 12, 2021, for $2,115.38 for chiropractic services and exercises. The respondent denied this plan on January 20, 2021, citing the applicability of the MIG.
The applicant has not met the burden of proving he should be removed from the MIG
9The 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 s. 3(1) of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury” The terms “strain”, “sprain”, “subluxation”, and “whiplash associated disorder” are defined in the Schedule.
10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains injuries that are predominantly minor. An applicant may receive payment for treatment beyond the $3,500 cap if they can demonstrate an impairment that does not fall within the definition of a minor injury under s. 3(1) of the Schedule. In this case, the applicant claims his injuries fall outside of the MIG because he sustained a psychological impairment, an injury not captured within the definition of a minor injury under s. 3(1) of the Schedule. The burden is on the applicant to establish the psychological impairment on a balance of probabilities.
11To be removed from the MIG due to a psychological impairment, the applicant must demonstrate he has a psychological impairment and not post-accident sequelae. A psychological diagnosis requires the profession of ongoing, post-accident symptoms, or clinically significant psychological impairments.
Applicant’s Evidence
12To establish he has psychological impairment as a result of the motor vehicle accident, the applicant relies on a psychological consultation and treatment plan dated December 5, 2020, in support of funding for an assessment, and the resulting psychological report dated December 29, 2020, and authored by Dr. Aghamohseni (the report). The only other evidence submitted by the applicant are the clinical notes and records of the walk-in clinic he attended on the day after the accident, the summary of his consultation prior to the psychological assessment, and the clinical notes and records of the providers of chiropractic and massage treatments.
13The report is based on an interview with the applicant and the administration of five psychological tests. The report diagnoses the applicant with three DSM-IV mental health disorders: major depressive disorder (single episode, in the severe range), somatic symptom disorder (with predominant pain, persistent at mild levels) and specific phobia. Dr. Aghamohseni concluded the psychological injuries could not be treated within the MIG and recommended at least 12 psychotherapy counselling sessions.
14The respondent did not order an independent medical assessment.
Findings
15Resolving this issue hinges on whether the applicant has met the burden of proving on a balance of probabilities that he has a psychological injury as a result of the motor vehicle accident. The applicant does not submit, nor did he provide any evidence, that his physical injuries fell outside of the MIG or that he has a pre-existing condition. For the reasons that follow, I find the applicant has not met the burden of proving on a balance of probabilities he sustained a psychological injury as a result of the accident.
16The report is the applicant’s most significant piece of evidence. I find the report is insufficient to meet the burden of proving on a balance of probabilities that the applicant sustained a psychological impairment as a result of the accident because I find the report itself suffers from inherent contradiction, implausibility as well as weakness that make it insufficiently reliable to meet the burden of proof.
17My first reason for not putting weight on the report are that the sources of information and the method of analysis to arrive at the conclusions in the report are either incomplete or not transparent. The sources of information for the report are limited to an interview with the applicant and the application of five psychological tests. The report does not indicate the length of the interview, and how much time was allocated to administering the battery of tests. The raw data or scores used to administer the tests are not in evidence before me. The report indicates the overall assessment was conducted and supervised by Dr. Aghamohseni, a licensed psychologist, but with the assistance of a registered psychotherapist (qualifying). There is no indication as to which of the two professionals interviewed the applicant and administered the psychological tests. Finally, even though Dr. Aghamohseni works at the same clinic that had provided medical rehabilitation services over 20 times to the applicant as of the date of her report, the clinical notes and records of these service providers were not reviewed to prepare the report.
18Second, I find that the report is inconsistent with the contemporaneous clinical notes and records of the providers of chiropractic and physiotherapy services to the applicant. The report states that, as of December 27, 2020, the applicant reported a “nine” level of pain in his neck on a rating scale describing ten as “excruciating” pain and zero as “non-existent.” However, a clinical note from chiropractic/physiotherapy treatment dated December 1, 2020, indicates the applicant self-reports the pain in his neck and upper back as 40% improved, intermittent and as a “3/10”. I have great difficulty reconciling this discrepancy. It reduces the weight I give to the reliability of the report.
19Third, the report diagnoses the applicant with somatic symptom disorder with predominant pain, persistent, at mild levels. I have reviewed the clinical notes and records of the chiropractic/psychotherapy provider and there I was not pointed to references to disturbances in the applicant’s sleep due to pain. These notes and records are based on 22 visits to the clinic from the date of the accident to the date of the report and not once is there a reference to sleep disturbance due to pain. The only reference to sleep disturbance is in a clinical note dated January 12, 2021, from Heath Pro Wellness that the applicant “[r]reports sleep has improved overall.” I find the reference in the report to the applicant’s non-restorative sleep due to pain to be inconsistent with other information I have. This is another reason I attach limited weight to the psychological report.
20Fourth, I find the report’s conclusions about the applicant’s inability to function and carry on a normal life are implausible when assessed in the context of all of the other evidence before me. The evidence is clear that the applicant returned to work two days after the motor vehicle accident. There are statements in the psychological report that he finds work tasks difficult because of neck pain. These statements are inconsistent with clinical notes and records that report intermittent pain that is improving and at a scale of “3/10” based on the applicant’s self-report. There is nothing in the contemporaneous clinical notes and records at all to indicate the applicant complained of any limitations to his ability to work to chiropractic service providers.
21For these reasons, I find the report is not persuasive and inconsistent with other evidence submitted by the applicant. I place very limited weight on the report and find it is not evidence upon which I can base a finding the applicant sustained a psychological injury as a result of the accident. The applicant has not met the burden of proving on a balance of probabilities that he sustained a psychological injury. As this was the only basis on which he sought to be removed from the MIG, I find the MIG applies.
The Insurer Complied with s. 38(8)
22Though I have found the MIG does apply, the applicant has further submitted the respondent is disentitled to rely on the MIG limitations and liable for payment of these three treatment plans because it did not comply with the notice requirements in s. 38(8) of the Schedule. Upon review of the relevant authorities and the three denial letters at issue, I disagree and find the requirements of s. 38(8) are met in the circumstances of this case.
23In written submissions, the applicant argues that, regarding all treatment plans in dispute, the respondent “failed to provide any further specifics as to the information or documents that are needed for approvals, other than to state the injuries are minor.” The applicant refers to the Divisional Court’s decision in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 and argues that the respondent provided mere boilerplate statements that did not provide meaningful reasons to which the applicant could respond. The applicant argues that the respondent thus failed to discharge its statutory obligations under the Schedule.
24Though the applicant does not expressly cite specific provisions of the Schedule, it is clear they allege the respondent failed to comply with s. 38(8) of the Schedule in respect of all treatment plans in dispute. A failure to comply would thus triggering the consequences of s. 38(11).
25Sections 38(8) and 38(11) of the Schedule set out notice requirements for insurers responding to treatment plans. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives a treatment plan which goods, services assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the good and services to not be reasonable and necessary.
26The requirement for medical reasons in s. 38(8) of the Schedule is explained in the Tribunal’s reconsideration decision of T.F. Peel Mutual Insurance Company, 2018 CanLII 39373 at paragraph 19:
An insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation service the Schedule’s consumer protection goal.
Compliance with s. 38(8) in Respect of Psychology Treatment Plans
27The treatment plan proposing $2,200.00 for a psychological assessment is dated December 5, 2020, and was submitted by Ms. Aghamohseni. This treatment plan describes the injury and sequela as problems related to life-management difficulty, other sleep disorders, nervousness, stress, unhappiness, symptoms involving emotional state and state of emotional stress and shock. It contains a summary of a December 3, 2020, pre-screening interview with the applicant. The summary reported the applicant has “difficulty with accident ruminations, irritability, memory, hypervigilance, and feelings of anxiety and nervousness” and expressed interest in obtaining help to address his post-accident emotional and psychological issues. The summary opines he has psychological symptoms that fall outside of the MIG.
28The applicant submitted a treatment plan for $3,566.29 for psychological services, also prepared by Ms. Aghamohseni, dated December 27, 2020. The treatment plan contained a summary of the s. 25 report and the report itself was forwarded to the respondent. The contents of the report have been discussed in detail above.
29The denial letters in respect of the two December 5 and December 27, 2020, treatment plans are identical in all respects other than the identification of the date of the treatment plans, the treatment types and the amounts not approved. The identical text reads:
I have received recommendations dated [Dec. 5, 2020/Dec. 27, 2020] from HEALTH-PRO Wellness. The total recommendation of [$2,200.00/$3,566.29.00] has not been approved because I believe your injuries are categorized as Minor Injury. Recommendations must address your diagnosis. I provided some guidance below in “additional details to help you understand the minor injury category.
30Each letter breaks out the type of treatment and the amounts not approved and indicates that the reader must “see additional comments” to learn the reason the treatment is not approved. The substantive additional comments read:
I have reviewed your medical file and your injuries are consistent with the Minor Injury Guideline. There is no compelling medical evidence to support otherwise. I have already approved funding up to the maximum limits under this guideline and you have now exhausted this limit. Therefore, this treatment plan is not reasonable, necessary and essential.
31The letter also refers the reader to “additional details” to better understand the reasons for the denial. The “additional details” take the form of generic information on the MIG. They set out a definition of “minor injury” as injuries that include “a sprain, strain, bruising, whiplash injuries, cuts and scrapes, back pain and anything resulting from these injuries.” It goes on to say “[i]f you can’t recover from your minor injuries within the limit because of a documented, pre-existing medical condition, additional treatment may be available.”
32The applicant submits these denial letters are deficient because the respondent “failed to provide any further specifics as to the information or documents that are needed for approvals, other than to state the injuries are minor.” I disagree. The denial letters provide a “medical reason” because they cite the MIG. Citing the MIG imports the definition of a minor injury from the Schedule. This definition incorporates specific medical conditions. Moreover, the denial letter, by directing the applicant to “additional information”, goes on to provide a greater explanation for the applicant to refer to in order to understand the MIG, citing specific medical conditions. I find the denial letter provides a medical reason.
33Nor do I agree with the submission the letters are deficient because they fail to provide further specific information about what information should be submitted for an approval of the treatment plan. The denials clearly state no compelling medical documentation had been provided to support the treatment, providing the medical reason that the injuries fall within the MIG. The denial does state that the injury category may change, based on additional documentation. This, along with the explanation of minor injury in the “additional information” provides a basis for even an unsophisticated reader to decide whether or not further documentation should be provided.
Compliance with s. 38(8) in Respect of Chiropractic Treatment Plan
34The applicant’s provider submitted a treatment plan in the amount of $2,115.38 for chiropractic care on January 12, 2021. The treatment plan in identifying the injury and sequela information refers to “strain and sprain” of the cervical and thoracic spine, ribs, and sternum as well as, acute pain and whiplash. The denial letter, dated January 20, 2021, contains the same language as the two denial letters set out above, but relates it to this specific treatment plan. It states the “injuries are categorized as Minor Injury” and further states there are no compelling medical documents to support the chiropractic treatment proposed. As with the two denials discussed above, the applicant is directed to “additional information” which, again provides a definition of a minor injury for the applicant to consider.
35I find this denial letter also complies with s. 38(8) of the Schedule. The letter provides a medical reason for the denial, i.e., that the injuries to which the proposed treatment is directed fall within the MIG. It directs the applicant to an explanation of what a “minor injury” is and leaves it open to the applicant to provide medical information that could change a decision on the injury category. I find this denial provides sufficient information for the applicant to decide whether to dispute the treatment plan. It clearly explains the medical reason for the denial, with further clarifying information. The clarifying information, in the “additional information” portion of the letter, tells the applicant that the injuries identified in the treatment plan fall itself within the definition of a MIG. The fact that this denial is very similar to the denials in respect of the psychological plans does not mean it is mere boilerplate.
Interest and Award
36The applicant also seeks interest on unpaid benefits to which he is entitled, and an award under s. 10 of Reg. 664. As I have found there are no benefits payable, there is no basis to find interest is payable or to make an award.
ORDER
37The Tribunal orders:
i. The applicant has not met the burden of proving his injuries fall outside of the MIG and there are thus no benefits payable in respect of the three treatment plans in dispute.
ii. As there are no benefits payable, the applicant is not entitled to interest; and,
iii. As there are no benefits payable, the applicant is not entitled to an award.
Released: November 12, 2024
Emily Morton
Adjudicator