Duncan v. Travelers Insurance Company of Canada, 2024 CanLII 159

Citation: Duncan v. Travelers Insurance Company of Canada, 2023 ONLAT 22-002082/AABS

Licence Appeal Tribunal File Number: 22-002082/AABS

In the matter of an application pursuant to section 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Deon Duncan

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Taivi Lobu

APPEARANCES:

For the Applicant: Alex Nikolaev, Counsel

For the Respondent: D'Arcy McGoey, Counsel

HEARD by Videoconference: July 12, 2023

OVERVIEW

1Deon Duncan, the applicant, was involved in an automobile accident on September 11, 2019, 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, Travelers Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

1. 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 Minor Injury Guideline limit?
2. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 1, 2020 to date?
3. Is the applicant entitled to $710.00 for uber rides proposed by Spinal Touch Wellness in a treatment plan (OCF-18) dated September 30, 2019?
4. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for chiropractic services from Dev Sarthy, DC (Spinal Touch Wellness) proposed in a treatment plan (OCF-18) dated January 4, 2020?
5. Is the applicant entitled to $1,850.00 for chiropractic services from Dev Sarthy, DC (Spinal Touch Wellness) proposed in a treatment plan (OCF-18) dated July 16, 2020?
6. Is the applicant entitled to $2,200.00 for chiropractic services from Dev Sarthy, DC (Spinal Touch Wellness) proposed in a treatment plan (OCF-18) dated May 17, 2021?
7. Is the applicant entitled to $2,200.00 for a psychological assessment from Scarborough Physio and Rehab Center proposed by Ricardo Harris, C. Psych, in a treatment plan (OCF-18) dated March 4, 2021?
8. Is the applicant entitled to $2,686.00 for a psychiatric assessment to be performed by Joan Quinn, MD, proposed in a treatment plan (OCF-18) dated February 1, 2022?
9. Is the applicant entitled to $2,686.00 for a chronic pain assessment to be performed by Mark Friedlander, MD, as proposed in a treatment plan (OCF-18) dated February 1, 2022?
10. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is removed from the Minor Injury Guideline.
2. The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from December 1, 2020 to September 11, 2021.
3. The applicant is not entitled to $710.00 for uber rides proposed September 30, 2019.
4. The applicant is entitled to $200.00 for chiropractic services proposed January 4, 2020, payable once incurred.
5. The applicant is not entitled to $1,850.00 for chiropractic services proposed July 16, 2020.
6. The applicant is not entitled to $2,200.00 for chiropractic services proposed May 17, 2021.
7. The applicant is entitled to $2,200.00 for a psychological assessment proposed March 4, 2021, payable with evidence of it being incurred.
8. The applicant is entitled to $2,686.00 for a psychiatric assessment proposed February 1, 2022, payable with evidence of it being incurred.
9. The applicant is entitled to $2,686.00 for a chronic pain assessment proposed February 1, 2022, payable with evidence of it being.

PROCEDURAL ISSUE

The applicant’s expert reports are allowed into evidence

4The respondent asked that the reports of the applicant’s two experts, Dr. Mark Friedlander (chronic pain assessment) and Dr. Joan M. Quinn (psychiatric assessment) be excluded as evidence as neither expert provided an Expert Duty Form as required by Rule 10.2(b) of the Tribunal’s Common Rules of Practice and Procedure, October 2, 2017 (the Rules). The respondent submitted that it was precluded from being able to bring a challenge to the reports under Rule 10.4 as such a challenge had to be initiated at least 10 days before the hearing.

5While the respondent submitted that he was ambushed by the inclusion of these reports, both of the reports in question were provided to the respondent during the adjustment of the claim, were filed with the Tribunal for the December 12, 2022 case conference, and reviewed by the respondent’s experts in addendum reports completed long before the hearing. In addition, both the reports of Dr. Friedlander and Dr. Quinn were included in the hearing brief of the applicant, together with their CVs, and served upon the respondent 15 days before the hearing.

6As in the case of CP v Certas Home and Auto Insurance Company, 2022 ONSC 5978, the respondent did not bring a motion for the production of Expert Duty Forms in a timely manner prior to the hearing.

7I am satisfied that the respondent has been aware of the applicant’s reliance on these reports throughout the process. Pursuant to Rule 3.1, I will admit the reports of Dr. Friedlander and Dr. Quinn to ensure a fair and proportional determination of the merits of this matter.

ANALYSIS

The applicant is removed from the Minor Injury Guideline

8At issue is whether the applicant’s accident-related injuries take her outside of the Minor Injury Guideline. Section 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.” Claimants can be removed from the Minor Injury Guideline in circumstances related to a pre-existing injury, a psychological condition, or a chronic pain condition. In all cases, the burden of proof is on the claimant.

9An OCF-3 form completed by chiropractor, Dr. Dev Sarathy, identified the applicant’s accident-related injuries as whiplash associated disorder (WAD2) with neck pain and musculoskeletal signs; dislocation, sprain and strain of joints and ligaments of knee; sprain and strain of thoracic spine, lumbar spine, shoulder joint, and ribs and sternum; disorders of initiating and maintaining sleep; other anxiety disorders; and malaise and fatigue. I find that the physical conditions identified by Dr. Sarathy fall within the Minor Injury Guideline.

The applicant is not removed from the Minor Injury Guideline because of her pre-existing condition.

10Claimants may be removed from the Minor Injury Guideline if they can establish under section18(2) of the Schedule that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes achievement of maximal recovery if they are kept within the confines of the Minor Injury Guideline.

11The applicant submits that she should be removed from the Minor Injury Guideline based on evidence that her pre-existing back issues worsened after the accident, and relies on the evidence of her treating physiatrist, Dr. Veronica Kekosz, and the chronic pain assessment of Dr. Friedlander. The respondent submits that the applicant has not demonstrated that her accident-related injuries should be removed from the Minor Injury Guideline on the basis of a pre-existing injury.

12The applicant had pre-existing back issues, however, in order to be removed from the Minor Injury Guideline because of a pre-existing condition, s. 18(2) of the Schedule requires compelling medical evidence showing that the pre-existing condition precludes a person from maximal recovery if kept within the confines of the Minor Injury Guideline. In this case, two of the physicians who assessed the applicant, Dr. Friedlander and Dr. Farooq Ismail (a physiatrist who assessed the applicant in insurer examinations), found that the applicant has already reached maximal recovery of her physical injuries.

13As section 18(2) does not apply where a person has reached maximal recovery, the applicant cannot be removed from the Minor Injury Guideline on the basis of her pre-existing condition.

The applicant is not removed from the Minor Injury Guideline because of her psychological condition

14The applicant has not demonstrated that her psychological condition warrants removal from the Minor Injury Guideline.

15The applicant relies on a psychiatric determination report completed by Dr. Quinn dated February 22, 2022, diagnosing the applicant with major depressive disorder with anxious distress and adjustment disorder with depressed mood. The respondent relies upon an insurer examination of psychiatrist Dr. Ahmed Jwely, concluding that the applicant did not meet the diagnostic threshold for a psychiatric disorder, as well as an insurer examination conducted by psychologist Dr. Jay McGrory.

16I prefer the evidence of Dr. Jwely and Dr. McGrory as it relates to the applicant’s psychological condition. In arriving at his conclusion, in addition to a clinical interview, Dr. Jwely employed a DSM-5 Level 1 cross-cutting symptom measure which showed that in the domains of depression, anger and anxiety, the applicant did not meet the threshold of symptoms warranting further inquiry. Dr. Jwely’s conclusion is consistent with an August 2020, insurer assessment conducted by psychologist Dr. Jay McGrory. As part of his assessment, Dr. McGrory employed the Beck Depression Inventory and Beck Anxiety Inventory and determined that the applicant’s scores from these Inventories were not within the range of depression or anxiety. Dr. McGrory found that the applicant had emotional dissatisfaction but did not meet the clinical threshold for a psychological disorder.

17Dr. Quinn on the other hand, diagnosed the applicant with major depressive disorder and adjustment disorder. This differs significantly from the diagnoses of Drs. Jwely and McGrory. I prefer the conclusions of the latter two diagnosticians because in addition to a clinical interview, Drs. Jwely and McGrory also used psychometric measures to help inform their assessment. Dr. Quinn did not.

18I recognize that Dr. Kekosz stated that the applicant may be suffering from a mild adjustment disorder with mild depressed mood, and suggested six sessions of psychological counselling to assist with pain-related mild depression/anxiety. However, Dr. Kekosz was assessing the applicant in her capacity as a physiatrist: she did not conduct a psychiatric or psychological assessment. Her report is therefore of limited value with respect to determining the applicant’s psychological impairment.

19Lastly, both Dr. Manjit Virdee and Dr. F. Castelo Francisco served as family physicians for the applicant since before the accident. If the applicant had developed significant post-accident psychological symptomatology, there is no suggestion that either were alert to this. Despite the applicant having multiple appointments with both family physicians after the accident, I have not been directed to any notation in their medical charts indicative of post-accident psychological concerns.

20I find that there is insufficient evidence to warrant the applicant’s removal from the Minor Injury Guideline based on an accident-related psychological condition.

The applicant is removed from the Minor Injury Guideline because of her chronic pain condition

21I find that the applicant’s chronic pain condition removes her from the Minor Injury Guideline.

22The Tribunal has found that insured persons may escape the Minor Injury Guideline if they suffer from chronic pain which causes functional impairment

23The applicant submits that her restricting pain-related condition is caused by the accident, pointing out that before the accident, while she had intermittent pre-existing issues with her back, she was able to work full time and live a full, self-sufficient life. Since the accident the applicant submits that all aspects of her life have been restricted by pain, including her ability to work and to participate in her activities of daily living.

24The respondent submits that the applicant has not demonstrated that her low back issues, a major contributor to the applicant’s limitations, are accident-related. Accident-causation of the applicant’s right shoulder and cervical injuries is not disputed. The respondent points out that the applicant had previous issues with her low back and the emergency records on the date of the accident did not identify low back pain.

25I find that on the balance of probabilities, the evidence supports that the applicant’s post accident pain condition, inclusive of a worsening of her low back, is causally related to the accident.

The worsening of the applicant’s low back pain is accident related

26While the respondent points out that low back issues were not identified in emergency records on the date of the accident, at the applicant’s visit to her family physician within days of the accident, Dr. Virdee charted low back pain as part of the applicant’s post accident issues. In addition, all of the applicant’s medical charts show that since the September 2019 accident, low back pain was identified as a constant post-accident concern, together with headaches, and right-sided neck and shoulder pain. In addition, other evidence of the applicant’s 2019 injuries is consistent with the lumbar spine having been affected in the accident. For example, an October 2021 MRI report of the lumbar spine notes that the greatest narrowing in the lumbar spine was on the right side, the same side as her other accident-related injuries. The applicant’s accident-related injuries reported on the OCF-3 included not only neck, shoulder and lumbar spine issues but also sprain and strain of the thoracic spine, ribs and sternum. Dr. Ismail, the physiatrist who conducted in-person insurer examinations of the applicant and reviewed medical records (inclusive of the emergency records) and photos of the applicant’s vehicle, determined in his reports that from a physiatry perspective, the applicant’s injuries included the lumbar spine.

27Dr. Friedlander, in assessing the MRI of the lumbar spine performed in October 2021, concluded that the accident significantly aggravated the applicant’s pre-accident chronic low back pain likely causing further damage to the discs and facet joints in the spine and sprain of tendons and/or ligaments or muscles. He was of the view that the post-accident MRI of her lumbar spine showed a deterioration and aggravation of her degenerative condition resulting from the lumbar spine accident-injury and observed that disc bulging and foraminal stenosis appeared “marginally worse” compared to pre-accident imaging. He also noted that apart from pre-accident intermittent low-grade back pain, there was no previous history of her current accident-related symptoms.

28Having considering the applicant’s post-accident report to her family physician, Dr. Ismail’s assessment of the applicant’s injuries, and Dr. Friedlander’s assessment of the MRI in relation to the applicant’s injuries, I find that the preponderance of the evidence supports that the applicant’s current condition, inclusive of the extent of her low back issues, are accident related.

The applicant’s accident-related pain condition warrants removal from the Minor Injury Guideline

29I find that the applicant has demonstrated that her accident-related pain condition warrants removal from the Minor Injury Guideline. The applicant testified that prior to the accident, her earlier left shoulder and back condition did not affect her abilities to perform activities of daily living and that she was able to work full-time, with no ongoing issues with her low back. However, post-accident, she is unable to return to work, is restricted in her activities, unable to walk far, is fatigued and in pain, and has problems sleeping. She testified that she has been paying out of pocket for physical treatments to decrease pain. The applicant has advised health professionals and testified that in contrast to her self-sufficient pre-accident life-style, the applicant now relies on her children for much of the cleaning; relies on her daughter (who does not live with her) to drive her if the drive is more than 20 minutes; has limited her cooking to simple meals; needs help with laundry; relies on her son to shovel snow and garbage removal, and is unable to hold her grandchildren or be with them as she otherwise would because of accident-related restrictions.

30The respondent asked that the applicant’s testimony be viewed with caution, submitting that while she stated she could not go to a movie theatre because of difficulties sitting, she was able to make a family trip to Jamaica, and she presented her pain level as being at 10 out of 10. I agree with the respondent that a continued pain level at 10 is not believable but this is consistent with other evidence indicating that the applicant experiences emotionalism in relation to her pain-condition. Overall, I find her evidence to be consistent and candid and in accordance with medical and employment documentation filed. As pointed out by the applicant, none of the assessors found the applicant not to be credible and I note that Dr. Ismail in his November 2020 insurer examination observed that the subjective complaints of the applicant were supported by objective findings of his clinical exam.

31The respondent submitted that having pain in itself is not sufficient to remove a person from the Minor Injury Guideline. I agree. However, as stated earlier, the Tribunal has determined that a chronic pain condition can remove a person from the Guideline in circumstances of functional impairment. I find that the applicant has met her burden of demonstrating this. The applicant’s reports of her post-accident functional limitations are consistent with her accident-related injuries, with the clinical notes and records of her family physicians and treating physiatrist, and with continued actions she is taking to address pain. Such actions include regular use of pain medications and muscle relaxants since the accident; biofreeze and other rubs and creams; and continued out-of-pocket payments for physiotherapy, massage and chiropractic treatment.

32As the applicant’s pain-related complaints have been consistent over time, limit her activities, are corroborated by her treating professionals, and cause her to be relying on medication and physical treatments for temporary relief, I find that the applicant has demonstrated that she suffers from chronic pain warranting removal from the Minor Injury Guideline.

33The applicant is removed from the limits of the Minor Injury Guideline.

Income replacement benefit

The applicant is entitled to an income replacement benefit from December 1, 2020 to September 11, 2021

34I find that the applicant is entitled to an income replacement benefit up until September 11, 2021.

35To receive payment for an income replacement benefit 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 bears the burden of proving, on a balance of probabilities, that she meets this test.

36The applicant was receiving income replacement benefits up until December 1, 2020. At issue for the 104 week post-accident period, is whether the applicant is entitled to an income replacement benefit from December 1, 2020 to September 11, 2021. At the time of the September 2019 accident the applicant was 63 years of age and working full-time as a Personal Support Worker in a long-term care home, a position she had continuously held since 2004.

37The applicant submits that she has had a substantial inability to perform the essential tasks of her employment throughout the initial 104-week post-accident period. She relies on her testimony and the evidence of Dr. Kekosz, her family physicians, and Dr. Friedlander.

38The respondent submits that Dr. Kekosz and Dr. Friedlander were acting as advocates for the applicant, that the applicant had not attempted to return to work and that she had not met her onus of showing she could not return to her pre-accident employment. The respondent further relies upon the November 3, 2020 physiatry report of its assessor, Dr. Ismail, and his subsequent addendum reports confirming his initial opinion that he had not identified any ongoing accident-related musculoskeletal or neurological impairment that would prevent the applicant from returning to fulltime work without any restrictions.

39The respondent scheduled a functional abilities evaluation in October 2020 with Alexys Cruz, a registered kinesiologist. Mr. Cruz classified the applicant’s pre-accident work as being in the “Medium Strength Category” which entails handling loads between 22 to 44 lbs. Mr. Cruz was unable to complete the physical testing component of the evaluation as the applicant’s blood pressure, which was measured on three occasions during the evaluation, exceeded predetermined safety levels for the physical testing.

40While the physical testing component of the functional abilities evaluation could not be completed, I find that the applicant has otherwise met her onus of showing that she is unable to perform the essential tasks of her pre-accident employment. She has provided evidence of the essential tasks of her employment and her functional abilities as they relate to such tasks, which I find is supported by medical evidence presented at the hearing.

41The applicant has described her job responsibilities as follows: assisting long-term care home residents in activities of daily living including bathing, dressing, feeding, laundry, bedmaking, and helping with transfers in and out of Hoyer lifts and wheelchairs. Evidence from her employer identifies her job as a personal support worker as requiring frequent and constant standing and walking, turning, stooping, bending, lifting and carrying. Dr. Friedlander, who also carried out a physical examination of the applicant, identified the applicant as having pain limitations in prolonged walking, standing, lifting, kneeling, squatting, heavy carrying, bending, running and physical activities, as well as difficulties with overhead activities. Such limitations are supported by the applicant’s testimony and preponderance of other evidence before me.

42I find Dr. Kekosz’s assessment to be of assistance. When Dr. Kekosz had completed a physiatry assessment of the applicant in August 2021, she recommended that the applicant undergo a functional capacity evaluation to see if she had the physical potential to work as a personal support worker. However before such an evaluation was carried out, Dr. Kekosz received the results of MRI scans of the applicant’s lumbar spine and right shoulder. On reviewing the MRI results, Dr. Kekosz concluded that the applicant was totally disabled from returning to her previous work and also stated that she was “not certain if it would be worthwhile to refer her to a neurosurgeon as these changes [to the lumbar spine] are so extensive that surgery may not be advisable.”

43The applicant submitted that Dr. Kekosz’s evidence should be given weight as she was a neutral OHIP-funded physician and had become involved in the applicant’s care because of a referral from her family physician. The respondent on the other hand, submitted that Dr. Kekosz was acting as an advocate for the applicant and did not interpret the MRI results correctly.

44The respondent has not directed me to persuasive evidence in support of the submission that Dr. Kekosz did not interpret the MRI results correctly. I recognize that Dr. Ismail stated in a 2023 addendum report that upon a thorough review of updated documentation (which included Dr. Kekosz’s consult reports and the MRI of the lumbar spine), his opinions from his November 3, 2020 physiatry assessment report were not altered. However, Dr. Ismail did not present reasons for this conclusion nor did he provide an interpretation of the MRI results. The respondent has not pointed to specific evidence to indicate how Dr. Kekosz erred in her interpretation of the MRI. I also find that Dr. Kekosz’s interpretation is consistent with Dr. Friedlander’s review of the MRI results and his assessment of the applicant’s pain-related condition.

45Given the evidence of the essential tasks and functional requirements of the applicant’s pre-accident employment, the evidence of her pain-related limitations, and the assessments of Dr. Kekosz and Dr. Friedlander as supported by the MRI results, I find that the applicant has demonstrated that she suffers a substantial inability to perform the essential tasks of her employment. She therefore meets the requirements of s. 5(1) for an income replacement benefit for the first 104 weeks after the accident.

The applicant is not entitled to an income replacement benefit after September 11, 2021

46I find the applicant is not entitled to an income replacement benefit after September 11, 2021.

47To receive payment for an income replacement benefit more than 104 weeks after an accident, section 6(2)(b) of the Schedule requires that the applicant demonstrate that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. The respondent has directed me to the Divisional Court decision in Traders General Insurance Company v. Rumball, 2022 ONSC 7215 wherein the Court affirmed that the test for entitlement to a post-104 week income replacement benefit is limited to the parameters of the test as set in the Schedule and does not include additional considerations such as competitive settings.

48The applicant submits that the applicant is not capable of performing any work duties and has directed me to the evidence of Dr. Kekosz and Dr. Friedlander in support of this. The respondent maintains that the applicant has not provided persuasive evidence to show that she has a complete inability to return to any work.

49I agree with the position of the respondent. In terms of the applicant’s submission, I recognize that Dr. Kekosz states in her consult letter of March 2022 that it is highly unlikely that the applicant will be able to return to any form of work in the foreseeable future and Dr. Friedlander stated in his 2022 report that he did not believe that the applicant would return to the workforce. Both physicians focused on the applicant’s physical, pain-related condition and also spoke of possible mental impairments and mood issues. However, neither pointed to significant evidence of psychological limitations. As I have found earlier, the preponderance of the evidence inclusive of psychological and psychiatric assessments, does not demonstrate that the applicant has a psychological disorder.

50While the evidence shows that the applicant cannot carry out the physical requirements of her work as a personal support worker, I find that the evidence presented does not show on the balance of probabilities, that the applicant is unable to carry out a less physically demanding position. The applicant’s employment file documents the applicant’s communication, interpersonal and organizational skills with experience in sales and reception work. There has been no vocational assessment completed or other persuasive evidence presented to show that she could not carry out such work.

51For these reasons, I find that the applicant has not demonstrated that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Accordingly, she is not entitled to an income replacement benefit after September 11, 2021.

52Section 15(1) of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. The applicant bears the onus to prove on a balance of probabilities that the specific benefits she claims are reasonable and necessary for her accident-related impairments.

The applicant is not entitled to transportation costs

53The applicant is not entitled to $710.00 for Uber rides to and from treatment sessions as proposed by Spinal Touch Wellness in a treatment plan (OCF-18) dated September 30, 2019.

54The plan for $710.00 for transportation costs was denied because there was no coverage for transportation to and from treatment sessions within the Minor Injury Guideline limits. Even though the Minor Injury Guideline restriction to transportation costs no longer applies, the applicant must still demonstrate that the proposed plan is reasonable and necessary. I find that she has not done so.

55The treatment plan states that the Uber rides were required because the applicant had a fear of driving. However the applicant has not directed me to medical evidence to support this. The applicant reported to Dr. McGrory in August 2020 that she was not fearful of driving. As discussed earlier, the applicant is removed from the Minor Injury Guideline because of her chronic pain condition not because she has a psychological condition encompassing driving anxiety.

56At the hearing the applicant testified that she was unable to drive more than 20 minutes because of her back pain and that she drives to her physiotherapy appointments which she estimates as being about a 13 minute drive. I have not been directed to any evidence which shows that the driving time required to attend treatment sessions exceeds the applicant’s driving tolerance.

57As the applicant has not demonstrated that she requires transportation assistance to attend treatment sessions, I find that the plan proposing Uber rides for such sessions not to be reasonable and necessary.

The applicant is entitled to chiropractic treatment plans up until the time she attained maximal medical recovery

58I find that the applicant is entitled to the amounts at issue in the chiropractic treatment plan dated January 4, 2020, being $200.00 ($1,300.00 less $1,100.00 approved) but not entitled to subsequent chiropractic treatment plans dated July 16, 2020 ($1,850.00) and May 17, 2021 ($2,200.00).

59The applicant submits that she needs ongoing treatment to address her pain and has been continuing to pay for physical treatment out of pocket. The applicant relies on the clinical notes and records of her family physicians which show support for continued physiotherapy treatment, as well as the evidence of Dr. Kekosz.

60The respondent submits that the applicant has not shown that the plans are reasonable and necessary, and also relies on the reports of Dr. Ismail who first found that the applicant had reached maximum medical recovery when he assessed the applicant in August 4, 2020. He maintained this position in his subsequent reports.

61The treatment plan dated January 4, 2020 had been partially approved, with $200.00 being denied because of the limits of the Minor Injury Guideline. Given the proximity of this proposed plan to the time of the accident and the accident-based injuries, I find that the remainder of the January 2020 chiropractic treatment proposed is reasonable and necessary.

62I find that the applicant has not demonstrated that the plans for chiropractic treatment dated July 16, 2020 and May 17, 2021 are reasonable and necessary.

63Dr. Ismail determined that the applicant had reached maximal medical recovery when he assessed the applicant on August 4, 2020. He maintained his conclusion in addendum reports. Dr. Friedlander who had conducted a review of the October and November 2021 MRI reports and an in-person assessment of the applicant in February 2022, also concluded that the applicant had reached maximum medical recovery.

64Dr. Kekosz states in her report of March 2022 that the applicant is predisposed to a longer recovery time because of the condition of her low back, specifically referencing degenerative changes and multiple bulging discs. However, she does not indicate what additional recovery could be expected and what treatment modalities could contribute to such recovery. In these circumstances and given that both Drs. Ismail and Friedlander found that the applicant had reached maximum medical recovery, I do not find that Dr. Kekosz’s report is sufficient to demonstrate that plans for chiropractic treatment after July 2020 are reasonable and necessary for the purpose of the applicant’s recovery.

65Dr. Friedlander also recommended additional treatment to address the applicant’s pain related issues. However, he focussed his recommendations on active modalities of physical rehabilitation (muscle strengthening, core muscle strength training, non-impact aerobic conditioning, aqua therapy and exercise programs). While he stated that passive therapies should be reduced, he did state that therapies “such as heat and ultrasound treatments, massage and hydrotherapy and TENS may provide additional temporary pain relief.” Dr. Friedlander did not include chiropractic treatment in his treatment recommendations to address the applicant’s chronic pain condition.

66The chiropractic treatment plans of July 2020 and May 2021 both propose treatment which would likely be received by the applicant after having been found to have achieved maximum medical recovery. Neither of the plans identify treatment modalities which Dr. Friedlander indicated may be of assistance to treat the applicant’s pain condition.

67For these reasons, I find that the applicant has not demonstrated that the treatment plans dated July 16, 2020 and May 17, 2021 are reasonable and necessary.

The applicant is entitled to approval for the psychological assessment and psychiatric assessments

68I find that the applicant is entitled to the psychological and psychiatric assessment plans of Dr. Ricardo J. Harris and Dr. Quinn dated March 4, 2021 and February 1, 2022 respectively because they are reasonable and necessary.

69In submitting that these assessment plans are not reasonable and necessary, the respondent has directed me to the insurer examination of Dr. Jwely who determined that the applicant did not meet the diagnostic threshold for a psychiatric disorder. As previously stated, I have accepted Dr. Jwely’s conclusion that the applicant does not meet the threshold for a DSM-V diagnosis. This however does not mean that the assessments were not reasonable and necessary when they were sought. While I have found that the applicant does not suffer a psychological impairment, I find that there was evidence to support a need for an assessment at the time it was proposed. For example, in his 2020 insurer examination, Dr. McGrory found after an assessment that the applicant’s psychological condition was not at a diagnostic level, nonetheless he recognized that the applicant was experiencing emotional dissatisfaction. In a report of August 24, 2021, Dr. Kekosz observed that the applicant may be suffering with a mild adjustment disorder with depressed mood and recommended a short term of psychological counseling of at least six sessions to assist with mild depression/anxiety resulting from her chronic pain.

70I find that there was sufficient indication of psychological concern so as to warrant assessment. Accordingly I find that a psychological and psychiatric assessment to be reasonable and necessary, and payable with evidence of being incurred.

The applicant is entitled to approval for the chronic pain assessment

71As I have determined earlier that the applicant is removed from the Minor Injury Guideline because of her chronic pain condition, I find that the chronic pain assessment plan of Dr. Friedlander dated February 1, 2022, to be reasonable and necessary and payable with evidence of it being incurred.

Interest

72Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Accordingly, the applicant is entitled to interest on all overdue payments.

ORDER

73I find as follows:

1. The applicant is removed from the Minor Injury Guideline.
2. The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from December 1, 2020 to September 11, 2021.
3. The applicant is not entitled to $710.00 for uber rides proposed September 30, 2019.
4. The applicant is entitled to $200.00 for chiropractic services proposed January 4, 2020, payable once incurred.
5. The applicant is not entitled to $1,850.00 for chiropractic services proposed July 16, 2020.
6. The applicant is not entitled to $2,200.00 for chiropractic services proposed May 17, 2021.
7. The applicant is entitled to $2,200.00 for a psychological assessment proposed March 4, 2021, payable with evidence of it being incurred.
8. The applicant is entitled to $2,686.00 for a psychiatric assessment proposed February 1, 2022, payable with evidence of it being incurred.
9. The applicant is entitled to $2,686.00 for a chronic pain assessment proposed February 1, 2022, payable with evidence of it being incurred.

74The applicant is entitled to interest on any overdue payment of benefits.