Licence Appeal Tribunal File Number: 22-010179/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:
Fernando Tedesqui Duran
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Nicholas Whelan, Paralegal
For the Respondent: Earl Murtha, Counsel
HEARD: By way of written submissions
OVERVIEW
1Fernando Tedesqui Duran, 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 treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 18, 2021, to June 13, 2022?
iii. Is the applicant entitled to $2,455.86 for chiropractic services, proposed by 101 Physio in a treatment plan dated September 16, 2020?
iv. Is the applicant entitled to $200.00 for chiropractic services, proposed by 101 Physio in a treatment plan dated December 22, 2020?
v. Is the applicant entitled to $2,616.22 for chiropractic services, proposed by 101 Physio in a treatment plan dated February 18, 2021?
vi. Is the applicant entitled to $2,730.00 for psychological services, proposed by 101 Assessments in a treatment plan dated April 26, 2021?
vii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated January 4, 2021?
viii. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments in a treatment plan dated October 12, 2021?
ix. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order of June 12, 2023, indicated that the applicant was seeking an IRB from September 18, 2021, to date and ongoing. In the applicant’s submissions, he specifies that he is seeking an IRB from September 18, 2021, to June 13, 2022. I have reflected that change above.
RESULT
4The applicant is removed from the MIG due to his psychological impairments.
5The applicant is not entitled to an IRB for the period claimed.
6The applicant is entitled to the following treatment plans:
i. $2,730.00 for psychological services, proposed by 101 Assessments in a treatment plan dated April 26, 2021;
ii. $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated January 4, 2021; and
iii. $2,460.00 for a neurological assessment, proposed by 101 Assessments in a treatment plan dated October 12, 2021.
7The applicant is not entitled to the remainder of the treatment plans in dispute.
8The respondent is not liable to pay an award.
9The applicant is entitled to interest pursuant to s. 51.
ANALYSIS
Application of the Minor Injury Guideline
10Section 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.”
11An 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.
12I find that the applicant has proven, on a balance of probabilities, that he sustained a psychological impairment as a result of the accident. As such, he does not belong in the MIG.
13The applicant relies on the report of Lital Grinberg, psychological associate, from an assessment on January 25, 2021. Ms. Grinberg opined that the applicant was suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood, as well as Specific Phobia: Situational: Vehicular, and that he did not belong in the MIG. The applicant described experiencing nightmares that interrupted his sleep and caused him to wake in a panic. He reported being depressed since the accident, as well as being sad and stressed. He had anxiety while in a vehicle, especially as a passenger. The accident occurred in a garage, and he had a persistent fear of entering or exiting underground garages. He also reported experiencing frequent flashbacks which were triggered by sitting in a vehicle.
14The respondent submits that the applicant attended the Centre for Addiction and Mental Health (“CAMH”) in December 2019 to address psychological issues. Further, in July 2021, the applicant visited CAMH and advised the attending physician, Dr. Tang, that he was suffering from long-standing anxiety and was in the midst of a depressive episode. The respondent argues that the applicant’s psychological issues were unrelated to the accident.
15While I agree that the applicant suffered from psychological difficulties prior to the accident, those difficulties were different from what the applicant reported after the accident. I find that there is no compelling evidence that the applicant’s reported issues with flashbacks, nightmares, or fear while in a vehicle existed prior to the accident, and I therefore find it likely that these issues arose as a result of it.
16I agree that the applicant also appears to have suffered from psychological difficulties after the accident that stemmed from unrelated issues. However, during the applicant’s hospitalization at CAMH on July 20 and 21, 2021, he reported to Dr. Tang that he had other depressive episodes, most recently after the accident, and that he was experiencing daily flashbacks of the accident and avoided driving with others. As there is no compelling evidence that these specific symptoms existed prior to the accident, and they appear to be related to the nature of the accident itself, I find it likely that they were not simply caused by long-standing psychological difficulties.
17The respondent also argues that Dr. Tang explicitly ruled out PTSD from the accident as being a cause of his issues. The record the respondent refers to states: “r/o PTSD secondary to MVA in September 2020.” I do not accept that this means that this diagnosis had already been ruled out. The applicant complained to Dr. Tang that same day of flashbacks and avoidance of driving with others, and Dr. Tang provided no explanation as to why PTSD would have been ruled out. I find it more likely that Dr. Tang’s note meant that it was something that needed to be assessed further, and not something that had already been done.
18The respondent submits that Ms. Grinberg’s assessment was based solely on the applicant’s self-reports, and no validity testing was performed, and as such her report should be given little weight. I disagree. Ms. Grinberg administered the Multidimensional Pain Inventory and explained that the applicant’s scores were non-suggestive of malingering. Further, I find that the applicant’s self-reporting of flashbacks and fear as a passenger in a vehicle are corroborated by the symptoms he reported to Dr. Tang. Although it would have been preferrable for Ms. Grinberg to have the records of CAMH prior to completing her report, the only pre-accident record from CAMH relates to an anger management incident. I do not accept that this record would have changed Ms. Grinberg’s diagnosis of Specific Phobia. Notably, Dr. Tang had the applicant’s previous CAMH records available to him and still queried whether he was experiencing PTSD as a result of the accident. I accordingly do not accept the submission that Ms. Grinberg’s report should be given less weight.
19Aside from pointing to the records from CAMH, I note that the respondent has not provided evidence to contradict Ms. Grinberg’s diagnoses.
20I find that, on a balance of probabilities, the applicant has proven that he sustained a psychological impairment as a result of the accident, and therefore he does not belong in the MIG.
Income Replacement Benefits
21I find that the applicant is not entitled to an IRB.
22To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
23The applicant returned to work following the accident on modified duties for approximately 2 weeks. He subsequently returned to his regular full-time duties. On September 18, 2021, he stopped working, but he re-commenced working on June 13, 2022. The applicant has not provided compelling evidence to explain what symptoms prevented him from working, why he left his job, or why he was subsequently able to return to work in June 2022. He simply stated in his reply submissions that “the inability to work stemmed from the ongoing physical and psychological impairments suffered and the inability to carry on with the nature of employment.” Submissions are not evidence, and I do not accept that submission as there is no compelling evidence to support it. I accordingly find that the applicant has not met his burden in proving, on a balance of probabilities, that he is entitled to an IRB.
24The applicant also submits that the respondent’s notice letter of October 5, 2020, which requested a completed OCF-10, was not clear and unequivocal. He argues that there was no explicit request for a completed OCF-10, and therefore he could not assume what was being requested. As such, he argues that he is entitled to the payment of the benefit.
25I disagree with the applicant. The letter was quite detailed and made requests under s. 33 for a statutory declaration and various documents. It also included deadlines for the submission of the documents. It subsequently stated that, if it was determined that the applicant qualified for more than one specified benefit, the respondent would require him to complete an OCF-10 form which it enclosed for his review. I find that this letter was compliant with s. 36(4)(c), as it clearly and unequivocally made requests under s. 33. I do not see how providing a copy of the OCF-10 form and explaining that the applicant may need to fill it out in the future amounted to a failure to provide proper notice pursuant to s. 36(4). As such, I find that s. 36(6) is not triggered and the IRB is not payable.
26To 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.
Chiropractic services
27I find that the applicant is not entitled to the three treatment plans in dispute for chiropractic services.
28Each of the treatment plans propose treatment with a chiropractor, manual therapy, and acupuncture. In addition, the disputed items listed in the treatment plans are custom orthotics, TENS unit accessories, an ice/heat pack, and pain relief cream. Transportation was also recommended in the treatment plan dated September 16, 2020. The goals of the treatment plans were pain reduction, increased range of motion, increased strength, and a return to activities of normal living and pre-accident work activities.
29The applicant submits that his family physician, Dr. Florence, referred him for physiotherapy for plantar fasciitis of his right foot. The applicant also relies on the report of Dr. Vincenzo Basile, neurologist, as he recommended that the applicant continue with chiropractic and physiotherapy treatment.
30The evidence before me is that physiotherapy was not assisting the applicant with his plantar fasciitis. Dr. Florence recommended that the applicant receive physiotherapy for this condition in November 2020. At that point, according to the account summary from 101 Physio, the applicant was receiving treatment through an approved OCF-23. On February 17, 2021, Dr. Florence noted that the applicant’s foot was not getting any better. In addition, during Ms. Grinberg’s assessment on January 25, 2021, the applicant advised her that his right foot had zero improvements since the accident. I find that there is no compelling evidence that the physical therapy that the applicant was receiving was assisting him with his plantar fasciitis, and accordingly I find that further similar therapy for that condition is not reasonable and necessary.
31I place little weight on the opinion of Dr. Basile as it pertains to his recommendations for physical therapy. Dr. Basile is a neurologist, yet makes a number of recommendations for the applicant’s soft tissue injuries. However, he also recommends a physiatry assessment to provide guidance on various therapeutic options. Dr. Basile having recommended a physiatry assessment for this purpose indicates to me that he acknowledged that these kind of recommendations were outside of his expertise.
32Dr. Basile indicated that the reason why the applicant should continue with chiropractic and physiotherapy treatments was because he had seen some relief from these treatments, and because he saw a “significant worsening of symptoms” when this was reduced. I find that there is a lack of evidence of the level of symptom relief the applicant was experiencing with treatment, or what his pain levels were when it stopped. The applicant never complained to Dr. Florence of any pain from the accident aside from foot pain. The records from 101 Physio do not shed light on this issue either. Dr. Basile’s report does not go into any detail about the level of relief the applicant was experiencing with treatment. Without compelling information regarding whether the treatment goals proposed in the plans would be met to a reasonable degree, I find that the applicant has not met his onus in demonstrating that the proposed treatment is reasonable and necessary.
33Further, the applicant has not made submissions or provided compelling evidence to explain why the other items proposed in the treatment plans are reasonable and necessary, including the need for transportation. His only submissions regarding these treatment plans were about the need for physiotherapy and chiropractic treatments. I find that the applicant has not met his onus in demonstrating that the remaining items proposed in the treatment plans are reasonable and necessary on a balance of probabilities.
Psychological services
34I find that the applicant is entitled to the treatment plan for psychological services.
35As indicated above, I find that the applicant sustained a psychological impairment as a result of the accident. I find it reasonable for the applicant to seek treatment for his diagnosed conditions. The respondent points out that the applicant has not taken the medication prescribed at CAMH or followed up with his physicians since his visit at CAMH, however I do not find this argument persuasive. The applicant is entitled to seek forms of treatment that do not involve medication, and there is no requirement on him to follow up with specific practitioners rather than seek out psychotherapy elsewhere. Further, the respondent has not referred me to an opposing medical opinion that would indicate that the proposed psychotherapy is not reasonable and necessary.
36In her report, Ms. Grinberg proposed 16 sessions of psychotherapy. The treatment plan reflects her report, and proposes 16 sessions of counselling, plus notes and a file review for each session, as well as the preparation of a report and the treatment plan itself. The respondent does not make any argument with respect to the line items outlined in the treatment plan. I accept Dr. Grinberg’s recommendation and find that on a balance of probabilities, the cost of the treatment plan is reasonable and necessary.
Psychological assessment
37I find that the applicant is entitled to the treatment plan for a psychological assessment as he has proven on a balance of probabilities that it is reasonable and necessary. Having suffered a psychological impairment as a result of the accident, he is entitled to explore his condition, obtain diagnoses, and obtain treatment recommendations. The cost of this treatment plan is also in accordance with s. 25(5).
Neurological assessment
38I find that the applicant is entitled to the treatment plan for a neurological assessment.
39The treatment records from 101 Physio indicate that in September 2020, the applicant complained of headaches, brain fog, and fatigue. During his initial examination report at 101 Physio on September 14, 2020, he reported that he hit his head on the dashboard, and he was experiencing memory problems, headaches, and concentration problems. The applicant also reported to Ms. Grinberg that he was experiencing memory lapses, as well as a difficulty concentrating in the initial period after the accident.
40The applicant advised Dr. Basile that he was experiencing headaches, dizziness, and lightheadedness. He also endorsed symptoms which Dr. Basile indicated are some of the features of postconcussive syndrome, including: behavioural/personality changes, balance impairment, delayed/slowed spoken/physical responses, word finding difficulties, mild confusion, trouble controlling emotions, disorientation, confusion, dizziness, vertigo, inability to focus and concentrate, memory issues, and blurriness of vision. Dr. Basile made a number of diagnoses, including postconcussive syndrome that is consistent with a traumatic brain injury.
41The respondent argues that, during his assessment with Ms. Grinberg, the applicant denied striking his head inside the vehicle. However, Ms. Grinberg’s report indicates that he did not recall impacting his head, not that it did not occur. I am persuaded by the fact that the applicant’s report to Dr. Basile matches his report that he struck his head in the contemporaneous records of 101 Physio from approximately one week after the accident.
42The respondent has not referred me to an opposing medical opinion. In light of the applicant’s reported symptoms indicated above, I find that on a balance of probabilities, it was reasonable and necessary for the applicant to have undergone a neurological assessment to explore whether he sustained a concussion or head injury in the accident. The cost of this treatment plan is also in accordance with s. 25(5).
Interest
43I find that interest is applicable on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
44The 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. I find that the applicant is not entitled to an award.
45The applicant submits that he is entitled to an award as the respondent was in receipt of the s. 25 reports but continued to deny the benefits, and it did not schedule s. 44 assessments to obtain its own opinions.
46An award should only be ordered where an insurer’s conduct is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
47The applicant has not provided any statutory requirement or precedent which indicates that the respondent is obliged to obtain an independent medical opinion. The wording in s. 38(10) and s. 44(1) of the Schedule is permissive, not mandatory.
48The respondent denied the treatment plan for psychological services because the records of Dr. Florence, OHIP records, and OCF forms did not show an indication of a psychological impairment. It did not have the CAMH records at the time, and in fact they were only provided to the respondent for the first time with the applicant’s submissions for this hearing. I find that the respondent did not behave unreasonably in denying the psychological services or psychological assessment as the report of Ms. Grinberg appeared to be an outlier until submissions were provided for this hearing. In addition, I find that it was not unreasonable for the respondent to have doubted whether the applicant struck his head during the accident, given his somewhat confusing report to Ms. Grinberg that he did not recall striking his head.
49I accordingly find that the respondent is not liable to pay an award.
ORDER
50The applicant is removed from the MIG due to his psychological impairments.
51The applicant is not entitled to an IRB for the period claimed.
52The applicant is entitled to the following treatment plans:
i. $2,730.00 for psychological services, proposed by 101 Assessments in a treatment plan dated April 26, 2021;
ii. $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated January 4, 2021; and
iii. $2,460.00 for a neurological assessment, proposed by 101 Assessments in a treatment plan dated October 12, 2021.
53The applicant is not entitled to the remainder of the treatment plans in dispute.
54The respondent is not liable to pay an award.
55The applicant is entitled to interest pursuant to s. 51.
Released: November 22, 2024
Rachel Levitsky
Adjudicator