Citation: Scandlan v. Primmum Insurance Company, 2024 ONLAT 22-007265/AABS - A

Licence Appeal Tribunal File Number: 22-007265/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:

Zachary Scandlan

Applicant

and

Primmum Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Terry Prowse

APPEARANCES:

For the Applicant:

Zachary Scandlan, Applicant

Alicia Stuart, Counsel

For the Respondent:

Peggy Moore, Claims Representative

Jennifer Kiss Jenny Yun Jiang, Counsel

HEARD: by Videoconference:

October 10, 11, 12, 13 and 16, 2023

OVERVIEW

1Zachary Scandlan, the applicant, was involved in an automobile accident with his parents on March 24, 2014. At the time, he was 13 years old. More recently, he sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), which included an application to be deemed catastrophically impaired. The respondent, Primmum Insurance Company, denied certain benefits, so the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute are:

i. Has the applicant sustained a catastrophic impairment (CAT) as defined by the Schedule?

ii. Is the applicant entitled to $194.56 for occupational therapy services, proposed by Sherry Kettyle of DMA Rehability, in a treatment plan/OCF-18 (“plan”) dated July 7, 2020?

iii. Is the applicant entitled to $1,795.00 for a driving rehabilitation assessment, proposed by Chris Challenger in a treatment plan dated September 1, 2021?

iv. 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?

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

3At the start of the hearing, the applicant withdrew issue #4, as listed in the March 8, 2023 Case Conference Report and Order.

RESULTS

4The applicant did not sustain a CAT impairment because of the March 24, 2014 automobile accident.

5The applicant is not entitled to the disputed treatment plans.

6The respondent is not liable to pay an award.

7The applicant is not entitled to interest.

PROCEDURAL ISSUES

8The applicant submitted several motions that I dealt with at the start of the hearing. The first was for an order to the respondent to comply with production orders from the March 8, 2023 Case Conference Order and Report. These included the raw test data of Dr. Tuff, the section 44 neuropsychologist, all clinical notes and records of section 44 assessors, and a copy of all communications between the assessors and the assessment facility. The respondent referenced multiple emails between it and the assessment company, where it sought production items, asserting that it supplied all documents received to the applicant. The respondent offered to forward the emails to the applicant. Regarding the psychological raw test data, the respondent said that it did not have the data in its possession, but Dr. Tuff would be willing to provide it to another neuropsychologist who could interpret it. I was satisfied that the respondent made best efforts to obtain the production items and saw no need for a further order. Regarding the raw test data, I ordered the respondent to have it sent directly to Dr. Steiner, the applicant’s psychologist.

9The applicant sought the exclusion of Dr. Tuff’s clinical notes and records, stating that they were not submitted within the time limit ordered in the March 8, 2023 Case Conference Order and Report. The respondent stated that it provided the documents to the applicant when it received them. While I agreed that the respondent did not submit the documents on time I, declined to exclude them. First, they are relevant to the key issue in this hearing, which is whether the applicant is catastrophically impaired under criterion 8. Second, any prejudice to the applicant would be alleviated by reviewing the documents, which he had ample time to do. Third, I informed the applicant that he could request that I apply less weight to the documents, based on the respondent being in non-compliance with the production time limit.

10The applicant sought an order for me to exclude four surveillance reports that the respondent submitted prior to the hearing, stating that the respondent previously indicated that it would not be relying on them. The applicant noted that that the surveillance included reports totalling 92 pages and over 150 hours of video, which he would not have sufficient time to review and compare. The respondent acknowledged that it was not intending on using the surveillance but said that more recent surveillance was obtained since May, which was critical to its response to the claim. It offered that if the applicant did not want the videos, he could rely on the report itself, which contained the relevant observations of the investigator. I excluded the entirety of the surveillance reports. While the respondent may have believed that the reports were relevant, it had an obligation to provide them with ample time for the applicant to review and assess their information against the truth of the videos. In this instance, It would be prejudicial to the applicant for me to include evidence that it was not expecting and that it could not adequately review in time to respond.

11The applicant sought an order to exclude the report and testimony of Dr. Friedman, neuropsychologist, on the basis that it was not produced with the applicant in mind and would be irrelevant to this claim. The respondent acknowledged that the report was produced for the purpose of Tort action and not for this hearing. However, it argued that it was relevant to the degree that Dr. Friedman included statements that Dr. Steiner later relied upon when assessing the applicant. I denied the motion. While the doctor’s report was not produced with this claim in mind, it appears that it may contain information specific to the applicant’s claim, as well as some rationale for Dr. Steiner’s findings. I agreed to include the report, with the caveat that only information specific to the applicant and this claim would be considered. It would still be open to the applicant to make submissions on the evidentiary weight that I should apply to the information.

12The respondent sought an order excluding the testimony and report of Dr. Steiner, the applicant’s assessing psychologist. The respondent submitted that the applicant did not submit the report within the production time limit directed in the March 8, 2023 Case Conference Order and Report. Further, it submitted that the report was drafted years after the respondent’s section 44 psychological report was complete and would not reflect the applicant’s psychological status when the respondent’s assessment was performed. The applicant contends that Dr. Steiner’s report is highly relevant and must be included, given that it speaks directly to the single AMA Guideline criteria that he relies upon for a CAT designation. The applicant offers that there is no prejudice to the respondent, given that the report was submitted seven weeks before the hearing and it had ample time to review it. I denied the respondent’s motion. Clearly, neither party was in full obeyance of the Case Conference Report and Order for production exchange. In any case, I agree with the applicant that the report is highly relevant to his case and that it, as well as Dr. Steiner’s testimony, should be included. While I also agree that the report was submitted after the production time limit, it was provided to the respondent almost two months before this hearing; it should be aware of its contents. Any prejudice to the responded can be alleviated by reviewing the report and questioning Dr. Steiner.

ANALYSIS

13For automobile accidents claimed under the Schedule, the onus rests with the applicant to provide sufficient evidence to support his/her claim, to a degree of probability. There must first be evidence of an automobile accident. Then there must be evidence that the applicant was involved in the accident and sustained injuries. The applicant would then need to show that those injuries required the support of accident benefits identified in the Schedule.

14While the parties agree that the applicant was involved in an automobile accident on March 24, 2014, they disagree on the extent of the injuries he sustained, and the benefits required to treat them.

The applicant did not sustain a CAT impairment under criterion 8, because of the March 24, 2014 automobile accident

15According to Section 3.(2)(f) of the applicable Schedule, a catastrophic impairment caused by an accident is an impairment that, in accordance with the American Medical Association's Guide to the Evaluation of Permanent Impairment (AMA Guidelines), 4th edition, 1993, results in a class 4 impairment (marked) or a class 5 impairment (extreme), due to a mental or behavioral disorder.

16The applicant seeks a CAT determination, under criterion 8. He relies on an Application for Determination of Catastrophic Impairment (OCF-19) that was submitted by Dr. Essat Beshay, general practitioner, on September 2, 2020. He refers to the findings of Dr. Fulton in July 2020 and May 2022. He mostly relies on an August 14, 2023 Independent Psychological Assessment Report completed by Dr. Leon Steiner, and the doctor’s testimony. Following a 3-hour virtual assessment on April 21, 2023, Dr. Steiner concluded that the applicant showed class 4 marked impairments, as defined by the AMA Guidelines, within the four spheres of “activities of daily living”, “social functioning”, “adaptation”, and “concentration, persistence and pace”.

17The respondent denies that the applicant is catastrophically impaired. It relies on a Catastrophic Independent Neurocognitive (Psychometric) Assessment Report, a Catastrophic Independent Neuropsychological Examination Report and a Catastrophic Independent Psychological Report, all completed by Dr. Lawrence Tuff, psychologist, on July 29, 2021. Following a little over three hours of in-person assessments in December 2020, Dr. Tuff concluded that the applicant did not show any class 4 (marked) or class 5 (extreme) impairments from the 2014 accident.

18Regarding the OCF-19, it is an application and not actual evidence that the applicant is catastrophically impaired. In this case, it provided minimal information of causation or insight into how Dr. Beshav determined that the accident was catastrophically impaired, before the applicant applied for the CAT determination.

19Of the psychological catastrophic impairment reports that the parties presented, I found that those prepared by Dr. Tuff were more reliable and more credible than those of Dr. Steiner. I also found that the testimony of Dr. Tuff was more persuasive.

20It was clear that Dr. Tuff took the time to conduct psychometric testing and review all relevant documentation, medical and otherwise, before arriving at a finding. He listed all documentation reviewed, provided relevant excerpts from the reports and assessed the applicant’s presentation prior to, immediately after and in the years following the 2014 accident. I found Dr. Tuff’s testimony to be educational, as it should be from an expert witness, objective and grounded on evidence of the applicant’s medical/psychiatric presentation in various settings over the years. For example, Dr. Tuff challenged statements that the applicant had difficulty in school, by reviewing academic records that showed he was an average student. I found that his analysis was logical, and his findings were reasonable.

21That is contrasted by the report and testimony of Dr. Steiner, who acknowledged that he relied on the psychometric testing of another individual and did not review documents, such as the applicant’s education and employment reports. Dr. Steiner’s analysis lacked consideration of the applicant’s functioning in important settings, such as at school and work. The doctor acknowledged that his findings were based predominantly on the applicant’s reporting, and he became defensive when questioned about details in his report that were contrary to the medical, educational and/or employment records. For example, he stood by his finding that the applicant had a class 4 (marked) impairment because he “…does not bathe regularly due to low motivation secondary due to depression”, even after acknowledging that the applicant never endorsed that as an issue. The doctor’s response when asked about conflicting reports was essentially to state that he found the applicant to be truthful, had no reason to doubt him, accepted what he was told, and rendered reasonable diagnoses on those bases. I wholeheartedly disagree with that approach.

22While the applicant may have been sincere in his reporting, and I found that he was, that is not proof that his recollections were accurate or medically relevant/correct, particularly in the face of opposing evidence. Dr. Steiner’s role was to consider all pertinent information, including school reports and employment records, to assess the severity of any impairments that arose from the 2014 accident. He did not do this. He also had a responsibility to consider all relevant reports and make his findings independently and without bias. He didn’t do this either. Instead of challenging his own findings when presented with conflicting evidence, he became defensive and unwilling to step back from his conclusion that the applicant suffered from marked impairments in all areas of functioning. I find that Dr. Steiner’s assessment did not consider all relevant information, was significantly biased in favour of the applicant, and therefore, was neither reliable nor credible.

23The applicant was also assessed by Dr. William Fulton, clinical psychologist, in June 2020, and by Dr. Lawrence Freedman, clinical neuropsychologist, in December 2021. Although both wrote comprehensive reports, they lack key information for the purpose of this hearing because they were not prepared with CAT determination in mind.

24Having found that the assessment and findings of Dr. Tuff were reasonable, and the same of Dr. Steiner were not, the applicant has failed to show, on a balance of probabilities, that he is catastrophically impaired under criterion 8 of the Schedule.

The applicant is not entitled to $194.56 for occupational therapy services

25To 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, and as a result of the accident. To do so, he 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.

26From scant records contained in both document briefs, I was able to identify that the applicant submitted the OCF-18 on July 20, 2020, in the amount of $2,394.56 for “Training, cognition and learning (skills)”, and document support. Three days later, the respondent agreed to partially approve the plan to the Minor Injury Guideline limit, in the amount of $2,200.00.

27Neither party provided oral submissions related to this benefit and the available documentation was not sufficiently detailed for me to be able to identify what services the remaining $194.56 was to fund. With a lack of sufficient oral/documentary evidence and arguments to support the claim, the applicant failed to show what services the $194.56 was to pay for, how it would be accomplished, and that the cost was reasonable. He has, therefore, failed to show that the benefit was reasonable and necessary.

28Even if the benefit was reasonable and necessary, there are insufficient funds remaining to fund it. According to an August 3, 2021 letter from the respondent, it had removed the applicant from the MIG. In a letter dated October 13, 2021, it indicated that the $50,000.00 limit for medical/rehabilitation had been exhausted.

29The benefit is denied.

The applicant is not entitled to $1,795.00 for a driving rehabilitation assessment

30This treatment plan was completed by Dr. Vuyo Mpumlwana, clinical psychologist, on September 1, 2021. The respondent denied the benefit on October 13, 2021 for not being reasonable and necessary and for exceeding the $50,000 limit that was available for medical and rehabilitation benefits in the absence of a CAT determination. Again, neither party provided oral arguments related to this treatment plan.

31First, I am not convinced that the evidence supports a finding that driving rehabilitation was reasonable and necessary treatment for the applicant. As a 13-year-old in 2014 when the accident occurred, he did not possess a driver’s licence. In December 2020, he told Dr. Tuff that:

i. he had some mild driving-related anxiety;

ii. only had a G1 licence and had taken a couple of extra years to obtain it;

iii. had completed driver education, which was delayed due to COVID; and

iv. indicated that he was a better driver than passenger, particularly when a driving instructor was not present, and had no avoidance issues in that regard.

32While the applicant reported some mild, driving-related anxiety, that is not out-of-the-norm for people who have minimal experience and are learning to drive. The applicant was only 19 years of age at the time and was apparently able to successfully challenge his driving test. He was also able to drive, did so, and reported less issues as a driver, than as a passenger.

33The available evidence does not show that the applicant had driving-related issue beyond those that one would expect from a new driver. As such, the applicant has not met his burden of showing that the treatment plan is reasonable and necessary. Further, as described in paragraph 28 above, in the absence of a CAT determination, there are no funds remaining in the $50,000.00 limit to fund further medical and rehabilitation services.

34The benefit is denied.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are owed to the applicant, it follows that no interest is payable.

Award

36The 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. In this case, an award is not warranted because no benefits are payable.

ORDER

37Having reviewed the entirety of the evidence and submissions, I find the following:

i. The applicant did not sustain a CAT impairment under criterion 8 of the AMA Guidelines;

ii. The applicant is not entitled to $194.56 for occupational therapy services, or interest pursuant to s. 51 of the Schedule;

iii. The applicant is not entitled to $1,795.00 for a driving rehabilitation assessment, or interest pursuant to s. 51 of the Schedule; and

iv. The respondent is not liable to pay an award.