Lara v. Co-operators General Insurance Company, 2024 CanLII 126933

Citation: Lara v. Co-operators General Insurance Company, 2024 CanLII 126933

Licence Appeal Tribunal File Number: 22-011658/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:

Kevin Lara Applicant

and

Co-operators General Insurance Company Respondent

DECISION

ADJUDICATOR: Melissa Shea

APPEARANCES:

For the Applicant: Michael Yermus, Counsel

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kevin Lara, the applicant, was involved in an accident on June 23, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The applicant was denied the treatment in dispute on the basis that he sustained predominantly minor injuries that are treatable within the Minor Injury Guideline ("MIG"). The applicant was denied benefits by the respondent, Co-operators 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. Are the applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?

ii. Is the applicant entitled to $2,326.04 for physiotherapy services, proposed by Scarborough South Physio and Rehab Centre Inc in a treatment plan/OCF-18 ("plan") submitted August 11, 2020?

iii. Is the applicant entitled to $3,042.64 for psychological services, proposed by Scarborough South Physio and Rehab Centre Inc in a plan submitted January 4, 2022?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Scarborough South Physio and Rehab Centre in a plan submitted December 21, 2020?

v. Is the respondent liable to pay an award under section 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

4The applicant has demonstrated that removal from the MIG is warranted.

5The OCF-18s are reasonable and necessary, and payable once incurred.

6An award is not payable.

7Interest is payable on any overdue payment of benefits.

ANALYSIS

Applicant is not subject to the Minor Injury Guideline limit

8I find the applicant is not subject to the MIG on the basis that I find sufficient evidence to support the claim that his injuries are not minor.

9Section 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 sequalae to such an injury." An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

Removal from the MIG based on a psychological impairment

10The applicant submits that he should be removed from the MIG on two grounds. Firstly, the applicant states that as a result of the accident, he sustained a psychological impairment. He self-reported depression, anxiety, and post traumatic stress disorder, as per the report of Ms. Gronkowska, Psychological Associate. He also self-reported depression and anxiety in the section 44 report of Dr. McCutcheon, Psychologist.

11The respondent disagreed that the applicant should be removed from the MIG in regards to a psychological impairment. The respondent relies on the report of Dr. McCutcheon, who found that the applicant reported only mild psychological complaints. Dr. McCutcheon concluded that those complaints were subclinical and that there was no diagnosable medical condition. The respondent questions the reliability of the applicant's expert, Ms. Gronkowska, for two reasons. The respondent submits that reporting of Dr. McCutcheon is more reliable and should be given more weight as she is a clinical psychologist, whereas Ms. Gronkowska is a Psychological Associate; further, relying on the Velautham v. Allstate Insurance Company, 2021 CanLII 1942 (ON LAT) case, little weight should be given to Ms. Gronkowska's report because she did not refer to medical records in her report and she therefore must not have reviewed them. The respondent submits that self-reports without diagnostic testing are insufficient evidence; Ms. Gronkowska did not use psychometric testing and relied only on applicant's self-reporting of symptoms, therefore her psychological diagnosis should be given little weight, per the K. K. and Aviva General Insurance Company, 2020 CanLII 12739 (ON LAT) case. The respondent also submits that a lack of psychological complaints by the applicant in the notes of the family physician weighs against accepting Ms. Gronkowksa's. Lastly, the respondent submits the applicant stated to Dr. McCutcheon that he did not want to receive psychological counselling.

12I find the applicant's evidence sufficient to prove that he should be removed from the MIG due to psychological impairment. Based on self-reported symptoms and a diagnosis of the impairments of post-traumatic stress disorder, moderate major depressive disorder, and somatic symptom disorder, as per the report of Ms. Gronkowska; and corroborated by self-reported depression and anxiety in the report of Dr. McCutcheon. Ms Gronkowska reports related functional impairment affecting his ability to function reduced socializing, and not engaging in housekeeping activities. I find the applicant should be removed from the MIG based on the balance of probability.

13In regards to the respondent's arguments that the psychological complaints are minor based on the report of Dr. McCutcheon, I find that nevertheless, symptoms were self-reported. In regards to the respondent's argument that Ms. Gronkowska is less reliable than Dr. McCutcheon, I find that though Dr. McCutcheon found the symptoms subclinical, both reports contained similar self-reported psychological symptoms, and both are practicing experts in their field. In regards to the argument that the applicant expressed to Dr. McCutcheon that he didn't want counselling, I find that his appeal to the Tribunal spoke to his desire to receive psychological treatment, and further find this conflicting evidence speaks to weight only.

Removal from the MIG based on chronic pain

14The applicant submits that he should be removed from the MIG on two grounds, the second of which is chronic pain. I find no need to analyze removal from the MIG due to chronic pain, as I have found removal from the MIG due to psychological impairment.

Applicant is entitled to the Treatment Plans in dispute

15I find the applicant is entitled to the physiotherapy treatment plan, psychological treatment plan, and the psychological assessment plan in dispute.

16To receive payment for a treatment plan under 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, as per section 15 of the Schedule. 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 same are reasonable. There must be a reasonable basis for a request for an assessment.

17I find the applicant is entitled to the treatment plan for physiotherapy services.

18The OCF-18 for physiotherapy services, dated August 18, 2020, had goals of pain reduction, increase in strength, and increased range in motion, and had functional goals of return to activities of normal living, modified work activities and pre-accident work activities, with proposed physical rehabilitation, exercise and therapy and therapeutic intervention. In this treatment plan barriers to recovery were identified as chronic pain, psychological underlay and physical tasks remain aggravating, with proposed 8 weeks with 38 treatments for $2,326.04.

19The applicant states that as a result of the accident, he sustained physical injuries, which resulted in ongoing pain, with the following evidence: self-reported pain as a result of his injuries in the accident to Dr. Harpreet Ghotra, family doctor, in reporting over a 4 year period; in a report by section 44 examiner Dr. Zabieliauskas; and in section 44 examiner Dr. McCutcheon's report. The applicant submitted he is entitled to the treatment plans submitted, on the following grounds: the report of Dr. Khodabandehloo, orthopedic surgeon, which recommended physical therapy and massage therapy in regards to his diagnosis of ongoing pain as a result of physical symptoms on June 22, 2021; the argument that treatment (chiropractic and massage) would achieve the goal of relieving pain and therefore improve function, based on the 16-000536 v Co-operators General Insurance Company, 2016 CanLII 93133 (ON LAT) case; the argument that treatment was found to be reasonable if it provides even temporary relief, based on the Cubello v. Guidolin [2000] O.J. No. 1468 case; and that pain relief is a legitimate goal of treatment, as per the Violi v. General Accident Assurance of Canada [2000] Appeal Order case.

20The respondent denies the applicant's claim to treatment on the following grounds: The applicant has failed to prove that the treatment plan and assessment proposed are reasonable (based on goals, meeting those goals, and cost) and necessary, and bears the burden of proof, and has not provided evidence of such; no OCF-18s were submitted by the applicant, therefore it is impossible to determine if the goals in these are reasonable and necessary; the OCF-18s are not supported by sufficient medical evidence, whereas the denials of the OCF-18s are supported by the section 44 reports of the respondent's two assessors.

21I find the applicant is entitled to the treatment plan for physiotherapy services because Dr. Khodabandehloo recommended physical therapy and massage therapy, and the OCF-18 for physiotherapy had legitimate goals such as pain reduction, and therefore find the treatment reasonable and necessary. I disagree with the respondent that the applicant has not provided evidence, as per above, the applicant has provided medical expert evidence and self-reported symptoms to medical professionals for 4 years, as well as supporting case law; and I do not find the respondent's argument convincing that no OCF-18s were submitted, as I find that the applicant submitted OCF-18s in the application to the Tribunal.

22I find the applicant is entitled to the treatment plan for psychological services, and to the treatment plan for a psychological assessment.

23The OCF-18 for psychological services, dated December 23, 2020, describes applicant's injuries as not predominantly MIG injuries, described the applicant's conditions as moderate depressive episode, persistent somatoform pain disorder, post-traumatic stress disorder and a depressive episode. Treatment goals are increase in strength and return to activities of normal living, with 13 treatments of therapy, assessment, preparation and documentation, for a total of $3,042.64.

24The OCF-18 for psychological assessment, dated January 18, 2022, was stated to not be for a predominantly MIG injury that stood in the way of his tasks of employment and normal life, the description of which was sleep disorder, anxiety disorder, and nervousness, it had a goal of increase in strength and a functional goal of a return to activities of normal living. The plan had a proposed assessment for $2000 and $200 for documentation, for a total of $2,200.

25The applicant states that Ms. Gronkowska noted in her report that the applicant's psychological injuries as a result of the accident have compromised his ability to function, including house, social and recreational activities, and noted that the section 44 examiner Dr. McCutcheon also noted self-reported psychological injuries, and states that the OCF-18s submitted contained treatment goals to address this.

26The respondent denies the applicant's claim to treatment on the following grounds: no OCF-18s were submitted by the applicant, therefore it is impossible to determine if the goals in these are reasonable and necessary; the OCF-18s are not supported by sufficient medical evidence, whereas the denials of the OCF-18s are supported by the section 44 reports of the respondent's two assessors; and the applicant has only submitted goals related to chronic pain and not psychological services.

27I find the applicant is entitled to the treatment plan for psychological services, as sufficient evidence has been presented to convince me on the balance of probabilities that the applicant is entitled to psychological services because of self-reported depression, anxiety, and post traumatic stress disorder, as per the report of Ms. Gronkowska, and self-reported depression and anxiety in the section 44 report of Dr. McCutcheon. I further find the OCF-18 for psychological treatment had legitimate goals such as return to activities of normal living, and the cost of the services was reasonable, therefore find the treatment reasonable and necessary.

28I find unconvincing the respondent's argument that the applicant has not submitted psychological services goals, because the applicant has submitted OCF-18s/treatment plans which noted goals. I agree that the denials of the OCF-18s are supported by the section 44 reports of the respondent's two assessors, however, in examining the report of Dr. McCutcheon, I find that there was evidence of self-reported psychological symptoms similar to the report of Ms. Gronkowska, and because of this I find the report less convincing and have given it less weight. I find the argument about the lack of reliability of the expert Ms. Gronkowska speaks to weight only and is not dismissive of her report, because she, like Dr. McCutcheon, is a working expert in her field I am assigning significant weight to her report. In regards to the argument that little weight should be given to the psychological report if the assessor did not review medical records, further arguing that Ms. Gronkowska must not have reviewed medical records because she did not refer to them, I find that this speaks to weight only and is not dismissive, and find the report to retain significant weight. I find that the argument that self-reports without diagnostic testing are insufficient evidence to be unconvincing. I am not bound by my colleague's decisions at the LAT, and in P.S. v. Wawanesa Mutual Insurance Company, 2020 CanLII 87934 (ON LAT) it was a chiropractor's OCF-3 that formed the basis of the evidence, whereas in this case there is a psychological expert report in support. I find in regards to the argument that psychological diagnosis must be supported by evidence, that firstly I am not bound by my colleague's decisions at the LAT, but also this speaks to weight and objectivity of the report, as self-reported psychological symptoms are evidence, and the expert reports of both applicant and respondent contain self-reported symptoms. I find the contradictory evidence that the respondent submitted that the applicant stated he did not want to receive psychological counselling, to Dr. McCutcheon, is unconvincing as the applicant has provided evidence in OCF-18s that he does want to receive the same, and further find Dr. McCutcheon to have stated that the reason she did not find the OCF-18 to be reasonable and necessary due to this reason alone, to not be sufficient in weight to dismiss.

Interest

29The applicant is entitled to interest on any overdue benefits in accordance with section 51 of the Schedule.

Award

30The applicant sought an award under section 10 of Reg. 664. Under section 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 test for a section 10 award is whether the insurer's behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

31While I find that the treatment plans in dispute are reasonable and necessary, the applicant has not demonstrated that the respondent's conduct meets the threshold to warrant a section 10 award.

32The applicant submits that the respondent deliberately ignored the medical evidence with respect to ongoing chronic pain.

33The respondent submits that it gave reasonable consideration to information when assessing the claim. I find that the respondent followed the opinions of its assessors in making its determination of the treatment plans in dispute. The respondent relied on its denials, as it is so entitled to do. Where the applicant may disagree with a determination made by an insurer, this is not grounds for an award. There is no compelling evidence before me which supports that the respondent has unreasonably withheld or delayed payment of benefits.

ORDER

34For the reasons outlined above, I find:

i. The applicant is removed from the MIG;

ii. The applicant is entitled to the treatment plans and assessment in dispute.

iii. The respondent is not liable to pay an award under section 10 of Regulation 664.

iv. The applicant is entitled to interest on any overdue benefits in accordance with section 51 of the Schedule.