Stella Capisciolto v. TD General Insurance Company, 2024 CanLII 126889

Citation: Capisciolto v. TD General Insurance Company, 2024 ONLAT 23-001351/AABS

Licence Appeal Tribunal File Number: 23-001351/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:

Stella Capisciolto

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Shen Subramaniam, Counsel

For the Respondent: Rui (Ricky) Shen, Counsel

HEARD: By way of written submissions

OVERVIEW

1Stella Capisciolto, the applicant, was involved in an automobile accident on August 14, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to the treatment proposed by Shoreham Chronic Pain and Assessment Centre as follows:

a. $4,628.21 for a multi-disciplinary chronic pain treatment program, in a treatment plan, dated February 5, 2021?

b. $3,092.24 for psychological services, in a treatment plan, dated July 8, 2021?

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

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

RESULT

4I find that the applicant is not entitled to either of the treatment plans in dispute, interest, or an award.

PROCEDURAL ISSUES

Non-compliance with production order

5The respondent’s request for the Tribunal to draw an adverse inference against the applicant for her non-compliance with the Tribunal’s production order is granted.

6The respondent submits that the applicant failed to comply with the October 6, 2023 Case Conference Report and Order (“CCRO”), which required the applicant to produce various documents to the respondent. As a result, the respondent requests that an adverse inference be drawn. The respondent submits that the applicant has failed to provide any updated clinical notes and records (“CNRs”) from her treating physicians, hospitals or clinics in accordance with the production order outlined in the CCRO, aside from the CNRs from Shoreham Chronic Pain and Assessment Centre. Specifically, the CCRO ordered the applicant to produce the following records, which the respondent submits have not been provided to it to date:

i. CNRs of the applicant’s family doctor from one year pre-accident to the date of the case conference;

ii. CNRs of Lifemark Health, from one year pre-accident to the date of the case conference;

iii. Complete prescription summary from Shoppers Drug Mart, from one year pre-accident to the date of the case conference;

iv. Complete copy of hospital records, from one year pre-accident to the date of the case conference;

v. Complete CNRs of any other physician (including specialists of general practice, physiatry, psychiatry, and orthopaedic surgery) or paramedical treatment provider (including specialties of physiotherapy, chiropractic, massage therapy or psychology), relevant to the issues in dispute, from one year pre-accident to the date of the case conference;

vi. Extended healthcare benefits file, from one year pre-accident to the date of the case conference;

vii. Complete employment file(s) as a midwife, including requests for time off, accommodations, attendance and performance reviews, from one year pre-accident to the date of the case conference; and

viii. Details of any outstanding accounts with respect to the treatment plans in dispute.

7The respondent further submits that the applicant has only produced the CNRs of her family physician, Dr. Ugo Gizzi, from December 12, 2024 to October 1, 2016. However, the decoded OHIP summary reveals multiple entries for the applicant’s family physician and other specialists, between the end of 2016 and the date of the case conference. The respondent relies on the decision of Adjudicator Boyce, in A.F. v. Aviva Insurance Company of Canada, 2020 CanLII 57414 (ON LAT), who noted that “visits or consultations with a family physician or specialist provide valuable and objective contemporaneous insight into progress, prognosis and diagnoses.” In addition, the respondent relies on the Tribunal’s decision in Shaikh v. Economical Insurance Company, 2023 CanLII 2690 (ON LAT), in which the Tribunal found that the applicant’s failure to produce medical records suggested that such records would likely contain evidence contrary to the applicant’s position.

8The applicant did not provide any submissions on this production request or provide an explanation for her failure to comply with the CCRO.

9I agree with the respondent and find that the applicant failed to comply with the production order set out in the CCRO. I find that these records are relevant to the issues in dispute, and it is appropriate for me to make an adverse inference from the applicant’s failure to produce the CNRs of the family physician, hospital records, treatment providers and other specialists seen by the applicant.

ANALYSIS

The applicant is not entitled to the treatment plan for a multi-disciplinary chronic pain program

10I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for a multi-disciplinary chronic pain program, dated February 5, 2021.

11To receive payment for a treatment plan under sections 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.

12The applicant claims entitlement to $4,628.21 for a multi-disciplinary chronic pain program, proposed in a treatment plan dated February 5, 2021. This plan was completed by Dr. Donald Wong, chiropractor and co-signed by Dr. Peter Li Preti, psychotherapist, both of Shoreham Chronic Pain and Assessment Center, (“Shoreham”). The treatment plan recommends eight mental health and addictions counselling sessions; eight chiropractic sessions; eight exercise sessions; eight acupuncture sessions; eight physiotherapy sessions; eight yoga sessions; two counseling sessions to promote health and prevent disease; two mental health and addictions therapy sessions; preparation, service; and documentation support activity for claim form. The goals of the treatment plan are to reduce pain, increase strength, improve functional tolerance, increase range of motion, return to activities of normal living and return to pre-accident work activities. The treatment plan further notes that before COVID-19, the applicant participated in physical therapy.

13The applicant submits that the treatment plan for a multi-disciplinary chronic pain program is reasonable and necessary because she continues to suffer from chronic pain. She submits that her myofascial injuries to her lumbar spine paraspinal muscles and upper sacral spine gluteal muscles have worsened since 2017. In support of her position, the applicant relies on the reports of Dr. Joseph Wong, physiatrist, dated August 30, 2017 and January 8, 2021.

14The respondent submits that the treatment plan was denied by letter dated April 21, 2021, based on the Insurer Examination (“IE”) reports, prepared by Dr. Sabrina Ming-Wai Tu, general practitioner, and Dr. Amena Syed, psychologist, dated April 21, 2021, who found that a multi-disciplinary chronic pain program is not reasonable or necessary.

15I find that the applicant is not entitled to the multi-disciplinary chronic pain program for the following reasons.

16Firstly, I find that the applicant has not provided sufficient medical evidence to support that the multi-disciplinary chronic pain program is reasonable and necessary. Aside from providing the CNRs from Shoreham dated August 5, 2021 and the reports of Dr. Wong, physiatrist, in her submissions, the applicant has not directed me to other corroborating medical evidence that supports or recommends the chronic pain program proposed. The applicant has not provided copies of the updated CNRs of Dr. Ugo Gizzi, family physician after October, 2016, the OHIP records, or any other CNRs documenting the treatment that she received or the specialists she saw post-accident.

17Upon review of Dr. Gizzi’s CNRs, that were provided in the respondent’s submissions, the last CNR is dated October 1, 2016. The last mention of any musculoskeletal complaints is on January 4, 2016, when the applicant is seen for a referral for orthotics because of trapezius myofascial pain. There are no CNRs documenting ongoing complaints as a result of the accident and no CNRs that are contemporaneous to the treatment plan in dispute.

18The applicant submits that her condition has worsened since 2017 and that the worsening of her condition and lack of improvement in her condition, is due in part, to the denial of her treatment. I find that the applicant has not provided any medical documentation to support that the respondent previously denied her treatment. The applicant has provided no CNRs or medical documentation setting out the treatment she received following the accident, or provided documentation to support a finding that the worsening of her condition was due to the denial of any treatment plans by the respondent.

19Secondly, I find that there is no medical evidence to show that the applicant followed the recommendation for a chronic pain treatment program, made by Dr. Wong, physiatrist, in his initial report, dated August 30, 2017. The recommendations made by Dr. Wong, physiatrist, in both of his reports, which are three and a half years apart, are the same. The applicant has not provided any medical evidence to support that she participated in any treatment following the 2017 recommendations or provided submissions as to why she did not follow Dr. Wong’s initial recommendations.

20Thirdly, I find the second report of Dr. Wong, physiatrist, dated January 8, 2021 unpersuasive. While Dr. Wong notes that the applicant received physiotherapy intermittently until March 2020, when the COVID-19 pandemic began, I find that there is no documentation supporting the applicant’s attendance for physiotherapy. Under “Review of Medical Documentation”, the only treatment records reviewed by Dr. Wong were the CNRs of Lifemark Health for the period from August 28, 2014 to June 3, 2015. These records were not provided in the applicant’s submissions. In addition, I find that Dr. Wong does not address the fact that he previously made the same recommendations for a chronic pain program in his 2017 report, but the applicant did not follow his recommendations at that time.

21I also agree with the respondent that while Dr. Wong, physiatrist, made the diagnosis of chronic pain syndrome, he did not conduct an analysis pursuant to the six criteria set out in the in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“Guides”). I am neither bound by past Tribunal decisions nor the Guides in the chronic pain context. However, in its submissions, the respondent refers to the Tribunal’s decision in Bryzhan v. Aviva General Insurance Company, 2022 CanLII 75162 (ON LAT), where the Tribunal noted that the Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the Guides, as a useful interpretive tool for evaluating chronic pain claims. I find that the applicant has not provided any submissions that she meets any of the criteria to substantiate a chronic pain diagnosis or to substantiate her ongoing pain complaints.

22Fourthly, I agree with the respondent that the applicant has not provided any medical evidence to support that the proposed chronic pain program will achieve the goals of the treatment plan. The applicant consistently reports that she continues to experience pain despite previously receiving facility-based physical treatments. Again, as the applicant has not provided any CNRs from her treating practitioners, there is no evidence before me as to what treatment the applicant received, how many treatments the applicant received or what benefit those treatment sessions had on the applicant’s condition. I draw from this the adverse inference that disclosing this information would be detrimental to the applicant’s case.

23Fifthly, I am persuaded by the IE report of Dr. Sabrina Ming-Wai Tu, general practitioner, dated April 21, 2021. Dr. Tu found no objective musculoskeletal impairments during her assessment. Dr. Tu noted that the applicant reported that in the 79 months from the accident and leading up to the assessment, despite having regular therapy, her neck pain had only improved by 40-50%, her back pain remains unchanged, and her bilateral foot pain had been worsening. Dr. Tu opined that there is no compelling evidence in the current literature for ongoing facility-based therapy 79 months after uncomplicated soft tissue injuries have been sustained. She further stated that there is no compelling evidence in the current literature that ongoing facility-based therapy at this stage has superior outcomes compared to a home-based exercise program, such as the one the applicant has already been taught.

24I agree with the respondent that the applicant’s self-reporting to her own assessors is consistent with Dr. Tu’s finding that ongoing facility-based therapy at this stage will not yield further benefits compared to a home-based exercise program. I find that the applicant reported that despite therapy she has not achieved much improvement. Dr. Wong noted in his report dated August 30, 2017, that the applicant has not received any further therapy as she stated that she elected not to continue with therapy as she found that there was not much improvement. Dr. Wong then noted in his report dated January 8, 2021 that the applicant described that her pain continues to persist despite treatment. Dr. Amena Syed, psychologist, also noted in her report, dated February 24, 2022, that the applicant advised that attending physical treatment sessions will only reduce her pain for one to three days.

25Finally, I am persuaded by the IE report of Dr. Syed, psychologist, dated April 21, 2021. Dr. Syed opined that the applicant’s psychological condition appears to have improved with the natural progression of time. Dr. Syed found that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the accident. As such, I find that the psychological components of the chronic pain program are not reasonable and necessary.

26For the reasons stated above, I find that the applicant has not met her onus of proving on a balance of probabilities that the treatment plan for a multi-disciplinary chronic pain program is reasonable and necessary as a result of the accident.

The applicant is not entitled to the treatment plan for psychological services

27I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for psychological services, dated July 8, 2021.

28The applicant claims entitlement to $3,092.24 for psychological services, proposed by Dr. Philip Stuart, physician, at Shoreham Chronic Pain and Assessment Centre, in a treatment plan, dated July 8, 2021. The treatment plan recommends eight counseling, mental health and addictions sessions; six therapy, cognition and learning sessions; documentation support, activity; and documentation support activity for claim form. The goals of the treatment plan are to reduce symptoms of adjustment disorder, anxiety, depressive and phobias, improve emotional status, return to activities of normal living, and return to pre-accident work activities. The plan notes “please refer to the progress report.” However, there were no attachments to this treatment plan.

29The applicant submits that the treatment plan for psychological services is reasonable and necessary based on the objective medical evidence which establishes that she suffers from a psychological disorder as a result of the accident that warrants treatment. The applicant relies on the psychological reports of Dr. Konstantine Zakzanis, psychologist, dated June 5, 2018 and Dr. Romeo Vitelli, psychologist, dated August 15, 2018, and the File Review Report of Peter Li Petri, psychotherapist, dated July 28, 2021.

30The respondent submits that the applicant has not provided any contemporaneous evidence supporting that further psychological treatment is reasonable and necessary. The respondent submits that the treatment plan is not reasonable and necessary and relies upon the IE report, prepared by Dr. Amena Syed, Psychologist, dated April 21, 2021, that concluded that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5, as a result of the subject accident.

31I find that the applicant is not entitled to the psychological services recommended in the treatment plan, dated July 8, 2021, for the following reasons.

32Firstly, I find that the applicant has not provided sufficient medical evidence to support a finding that the psychological services are reasonable and necessary. Aside from providing the reports of Dr. Zakzanis, psychologist, dated June 5, 2018 and Dr. Vitelli, psychologist, dated August 15, 2018, the applicant has not provided any CNRs from her family physician or any treating therapists to support her ongoing psychological complaints following the accident. I do not give these reports any weight because they are not contemporaneous with the treatment plan in dispute.

33Secondly, the applicant has not provided any medical evidence to support that she followed the recommendations made by Dr. Vitelli, psychologist, in his report dated August 15, 2018. Following approval for a psychological assessment by Dr. Zakzanis, psychologist, on June 5, 2018, Dr. Vitelli prepared a psychological report dated August 15, 2018. The applicant was diagnosed with an adjustment disorder with anxiety and depressed mood. Dr. Vitelli noted that the applicant is motivated to attend pain management therapy and counselling. I find that the applicant has not provided a copy of any treatment plan for psychological treatment or provided any evidence to support that the applicant pursued either type of therapy following Dr. Vitelli’s diagnosis and recommendations.

34Thirdly, the respondent submits that a treatment plan for psychological treatment was submitted and approved by the respondent dated August 22, 2018. There is no information as to whether the applicant attended for any of the approved psychological treatment and no submissions were made by the applicant about undergoing any psychological treatment following the accident. I agree with the respondent that the applicant has not offered an explanation as to why further psychological treatment is reasonable and necessary, and not a duplication of services, when the treatment plan in dispute is identical the treatment plan dated August 22, 2018. I find the decision in Zvonkin v. Aviva Insurance Company, 2023 CanLII 72672 (ON LAT), (“Zvonkin”) which was relied upon by the respondent persuasive. In Zvonkin, the Tribunal held that further psychological treatment was not reasonable and necessary when a previously approved treatment plan for identical services had not yet been fully consumed.

35Fourthly, I give weight to the IE report of Dr. Syed, psychologist, dated April 21, 2021. Dr. Syed concluded that the applicant’s psychological condition had improved with the progression of time as she did not appear to be significantly impaired. Dr. Syed concluded that further psychological treatment is no longer considered reasonable and necessary. Dr. Syed’s report is the only assessment of the applicant’s psychological condition around the time that the treatment plan in dispute was submitted.

36I find, that despite the applicant’s submission that the conclusions of Dr. Syed are inaccurate and inconsistent with the applicant’s current experience and symptoms, the applicant has not provided any CNRs to support her ongoing subjective complaints. The applicant has not provided any psychological treatment records or any CNRs from her family physician which document any psychological symptoms after the psychological assessments in 2018.

37I find that the Updated File Review, prepared by Peter Li Preti, psychotherapist, dated July 27, 2021, is unpersuasive. The report sets out the applicant’s response to the psychological report prepared by Dr. Syed. I agree with the respondent that the report does not contain any clinical testing nor a review of the medical documentation in the file and solely contains the criticism of Dr. Syed’s report by the applicant.

38I further find that while the applicant submits that her employment has been affected by her psychological injuries and that Dr. Syed ignored her complaints with respect to same, the applicant did not provide the employment records that were ordered in the October 6, 2023 CCRO. Therefore, there is no documented evidence to support the applicant’s submissions that her work has been affected by her psychological condition. I draw from this the adverse inference that disclosing this information would be detrimental to the applicant’s case.

39Finally, I find that the applicant has not provided any medical evidence to support that the proposed psychological services will achieve the goals of the treatment plan. The applicant has not provided any objective medical evidence to support that she suffers from ongoing psychological issues at the time the treatment plan was prepared or that she will even undergo psychological treatment that was previously approved and not incurred.

40For the reasons stated above, I find that the applicant has not met her onus of proving on a balance of probabilities that the treatment plan for psychological services is reasonable and necessary as a result of the accident.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to the disputed treatment plans, no payments are overdue, and thus no interest is payable.

Award

42The 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. As no benefits are owing, there is no basis upon which to grant an award.

ORDER

43For the reasons outlined above, I find that the applicant is not entitled to either of the treatment plans in dispute, interest or an award. The application is dismissed.