Licence Appeal Tribunal File Number: 21-009448/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:
Andrea Bryan
Applicant
and
Cumis General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Mark S. Taborowski, Counsel
For the Respondent:
Peter A. B. Durant, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Andrea Bryan (“the applicant”) was involved in an automobile accident on July 7, 2017, 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 Cumis General Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a medical benefit in the amount of $1,522.67 ($1,997.90 less $457.23 approved) for occupational therapy services and assistive devices recommended by Rehabilitation Management Inc. in a treatment plan/OCF-18 (“plan”) dated September 12, 2019?
ii. Is the applicant entitled to a medical benefit in the amount of $1,804.05 for vocational/academic training and assessment recommended by Rehabilitation Management Inc. in a plan dated September 12, 2019?
iii. Is the applicant entitled to a medical benefit in the amount of $2,892.98 for psychological services recommended by Gozlan Psychology in a plan dated September 5, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions the applicant withdrew a claim for attendant care benefits, and the parties clarified the amount in dispute for issue (i) above.
RESULT
4The applicant is entitled to part of the plan for assistive devices, $15.99 for the medication docette, plus interest. The balance of the plan is not reasonable and necessary.
5The applicant is not entitled to the plan for vocational/academic training and assessment.
6The applicant is entitled to the plan for psychological services, plus interest.
ANALYSIS
Issue i: occupational therapy services assistive devices
7The treatment plan dated September 12, 2019 was prepared by Ms. Stacey Bergman for assistive devices and education sessions, totalling $1,997.90.
8The plan was partially approved up to $457.23 for most of the assistive devices, the documentation fee, and one hour of planning.
9Three hours of “documentation support activity”, three more hours of planning, three hours of travel time, and three hours education were denied, along with $100.00 allowance for kitchen gadgets and $15.99 for a medication docette.
10The respondent relies on the occupational therapy report of Ms. Stanuliz-Duz, dated November 21, 2019. She noted that the applicant was a personal support worker (“PSW”), who therefore had received training on proper body mechanics, and demonstrated a good understanding of pacing and taking rest breaks.
11While the applicant is critical of Ms. Stanuliz-Duz’ report, she has not demonstrated that she requires training or education on pacing or body mechanics, or on the use of lighter cleaning equipment.
12Ms. Stanuliz-Duz found that four hours to order the approved devices was not reasonable and necessary, rather one hour to order equipment and ensure delivery was sufficient. The applicant has not made any submissions as to why the Tribunal should find that additional time was required to order the equipment, or that provider travel time was reasonable and necessary.
13I find that the applicant is entitled to the medication docette in the amount of $15.99, as she reported some memory issues to Ms. Stanuliz-Duz and to Ms. Bergman that she would forget to take her medication. The applicant has not met her burden to prove why the remaining balance of the treatment plan was reasonable and necessary.
Issue ii: vocational assessment
14The applicant was employed as a PSW and returned to work after the accident until she was terminated in June 2019 due to staff restructuring. She subsequently found another position as a PSW.
15Ms. Bergman submitted a plan dated July 22, 2019 for a vocational assessment. The stated goals were to determine the applicant’s vocational abilities. The plan indicates that the applicant continued to report ongoing pain and functional limitations affecting her ability to complete her daily tasks at home and the demands of her job. She was no longer working at her pre-accident employment, and was unable to perform the lifting, carrying, and support necessary to assist her clients with transfers, dressing, bathing and grooming.
16I find that the evidence does not support the need for a vocational assessment. The applicant continued working at her pre-accident employment for approximately two years post-accident, until she was terminated, and subsequently found another position as a PSW. Income replacement benefits were not in dispute, as she had withdrawn her claim as of October 4, 2017.
17After 104 weeks post-accident, the applicant would have to suffer a complete inability to engage in any employment for which she was reasonably suited in order to qualify for income replacement benefits. The evidence does not suggest that the applicant was unable to work in any capacity for which she was reasonably suited, nor has the applicant made that submission.
18The applicant has not established on a balance of probabilities that the vocational assessment was reasonable or necessary, given that it did not pertain to any benefits in dispute between the parties, and the applicant continues to be employed PSW.
Issue iii: psychological treatment
19The treatment plan dated September 5, 2019 proposed sixteen sessions of psychotherapy totalling $2,892.98 with Dr. Gozlan (psychologist). Dr. Gozlan identified her injures as: major depressive episode, somatoform disorders, specific isolated phobias, other sleep disorders, limitation of activities due to disability, irritability and anger. The goals included a reduction in her psychological symptoms, improvement of emotional status, coping strategies, sleep, and encouraged resumption of activities.
20The parties disagree about the cause of the applicant’s psychological injuries. The applicant relies on the psychological assessment report of Dr. Gozlan, dated October 3, 2019, wherein he diagnosed a major depressive disorder and somatic symptom disorder.
21The respondent relies on the insurer’s examination completed by Dr. Gerry Dancyger, psychologist, dated October 20, 2017 in which he concludes that there was no evidence of any psychological impairment. Unfortunately, the applicant’s daughter passed away quite suddenly after a brief illness in December 2017. The respondent submits that Dr. Gozlan failed to take into account other factors contributing to her psychological presentation at the time of his assessment.
22The leading case on causation is the Divisional Court’s decision in Sabadash v State Farm et al, 2019 ONSC 1121 (“Sabadash”). It establishes that the test for determining causation in accident benefits is the “but for” test. The applicant bears the onus to prove that “but for” the accident, she would not have suffered an impairment. The court held that an accident need not be the sole cause of the impairment, but it must be a “necessary cause”.
23I’m persuaded the evidence supports that the applicant sustained a psychological impairment as a result of the accident. It may not have been the sole cause of her impairment, but the evidence supports that it was a necessary cause.
24The applicant underwent the psychological evaluation with Dr. Dancyger in response to a treatment plan proposing a psychological assessment. The applicant reported occasional headaches, but no problems with dizziness or memory. When asked about emotional problems, she stated she was not able to do things as she used to, such as cleaning, and socialized less. She worried about another accident but continued to drive. She had not yet returned to work but planned to do so. Three psychometric tests were completed along with the interview. The applicant’s scores on all three tests yielded invalid results. Based on the interview and the results of her psychological testing, Dr. Dancyger concluded there was no objective evidence of a significant or diagnosable accident-related psychological disorder.
25I prefer the report of Dr. Gozlan, as it is more consistent with the bulk of the medical evidence.
26On February 6, 2019, the applicant was referred for a psychiatric consultation with Dr. Alexandra Karas at the hospital after reports of suicidal ideation to her family doctor. Dr. Karas noted several stressors over the past year and a half, including the motor vehicle accident that resulted in some physical disability and ongoing trauma symptoms, then the loss of her daughter, and issues in the workplace. Dr. Karas diagnosed major depressive disorder, bereavement and symptoms of PTSD. She prescribed Mirtazapine and arranged for follow up in the clinic as well as social worker support.
27The applicant followed up with her family doctor on February 21, 2019, and reported a history of stress in the past three years: the motor vehicle accident, a separation, her daughter passed away and her job was stressful. The doctor noted she started taken medication prescribed by the psychiatrist and advised her to stay off work for a few weeks. On March 21, 2019 the family doctor notes she was diagnosed with major depressive disorder with anxiety, and her medication was changed to Cipralex and Trazodone.
28Dr. Gozlan subsequently evaluated the applicant on September 5, 2019. Contrary to the respondent’s submission, I find that Dr. Gozlan did take into consideration the various factors that were impacting the applicant psychologically. He noted that the applicant had a history of psychological stressors, including the loss of her house to a fire in 2013, separation from her husband in 2015, and the loss of her daughter in 2017. She reported having taken about four months off of work after the accident, and after the death of her daughter took a further three months off work. The applicant continued to work as a PSW, but as of June 2019 changed to a smaller agency at a reduced capacity. He also administered psychological testing, and her scores reflected severe levels of anxiety and depression, and a high level of perceived disability. Dr. Gozlan opined that the applicant’s physical and psychological difficulty post accident reduced her capacity to handle the stress and grief of her daughter’s subsequent illness and death. Dr. Gozlan diagnosed a major depressive disorder and somatic symptom disorder as a result of the accident and exacerbated by the loss of her daughter. He recommended that the applicant participate in the proposed psychological sessions directed at helping her find better coping skills to reduce her symptoms of pain, depression and grief.
29I am persuaded that the bulk of the evidence supports that the subject accident was a necessary cause of the applicant’s impairments, and that the proposed psychological treatment was reasonable and necessary to treat these accident-related impairments.
30I find that the treatment plan for psychological treatment was necessary to treat the applicant’s impairments, and that the overall cost to achieve the stated goals is reasonable.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the medication docette, and the treatment plan for psychological services.
ORDER
32The applicant is entitled to part of the plan for assistive devices, $15.99 for the medication docette, plus interest. The balance of the plan is not reasonable and necessary.
33The applicant is not entitled to the plan for vocational/academic training and assessment.
34The applicant is entitled to the plan for psychological services, plus interest.
Released: April 8, 2024
Kate Grieves
Adjudicator