Nadal v. Intact Insurance Company, 2024 CanLII 33166

Citation: Nadal v. Intact Insurance, 2024 ONLAT 22-002920/AABS

Licence Appeal Tribunal File Number: 22-002920/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:

Tara Nadal

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Ivy So, Paralegal

For the Respondent: Robbie Brar, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Tara Nadal, the applicant, was involved in an automobile accident on December 16, 2020, 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, Intact Insurance Company, 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $1,940.88 for physiotherapy services, proposed by Art Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) that was denied on April 12, 2021?

iii. Is the applicant entitled to $1,968.77 for physiotherapy services, proposed by Art Rehabilitation Centre in a plan that was denied on May 13, 2021?

iv. Is the applicant entitled to $3,464.15 for physiotherapy services, proposed by Art Rehabilitation Centre in a plan that was denied on May 31, 2021?

v. Is the applicant entitled to $4,239.55 for psychological services, proposed by Excel Medical Diagnostics in a plan that was denied on February 10, 2022?

vi. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Excel Medical Diagnostics in a plan that was denied on May 27, 2021?

vii. Is the applicant entitled to $2,742.15 for driver/passenger assessment, proposed by Excel Medical Diagnostics in a plan that was denied on March 1, 2022?

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

3The respondent confirmed in submissions that the Minor Injury Guideline was exhausted. The applicant did not dispute this statement and made no reply submissions.

RESULT

4The applicant is subject to the limits set by the Minor Injury Guideline (“MIG”).

5As the MIG limit has been reached, the applicant is not entitled to the disputed treatment plans or interest.

ANALYSIS

Applicability of the Minor Injury Guideline

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

7An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside the definition of “minor injury” in s. 3. Previous decisions of the Tribunal have recognized chronic pain with functional impairment, and psychological impairment, as examples of injury profiles that may justify treatment outside the MIG.

8Additionally, s.18(2) stipulates that the MIG does not apply to an insured person, with a pre-existing condition or injury, if the following conditions are met:

i. the condition or injury is established prior to the accident;

ii. the condition or injury is documented by a health practitioner; and

iii. there is medical evidence stating that the applicant is prevented from achieving maximal medical recovery if limited to the MIG.

9In all cases, the burden of proof lies with the applicant.

Does the Minor Injury Guideline apply?

10I find that the Minor Injury Guideline (“MIG”) applies. The applicant remains subject to the $3,500.00 treatment limit.

11The applicant submits that her injuries are not minor, and she has a psychological impairment. She seeks a finding that her injuries fall outside the MIG and an order that the respondent pay for the disputed treatment plans, with interest. The applicant relies on the clinical notes and records (“CNRs”) from both her general physician (“GP”) Dr. Joza and her treatment providers at Art Rehabilitation Center (“ARC”). She also relies on the results of an assessment by Dr. McDowall, psychologist.

12For its part, the respondent submits that the applicant’s injuries are minor and relies on the findings of three separate s. 44 assessors, all of whom found that the applicant sustained only minor injuries as a result of the accident. It seeks an order that the applicant’s injuries be found within the MIG, and the disputed treatment plans are therefore not reasonable and necessary.

Physical Impairment

13There is nothing remarkable in the medical records for the period immediately following the accident. The applicant did not require a hospital visit on the day of the accident and she returned to work two days later as per the application for benefits (“OCF-1”).

14Neither do the CNRs from the applicant’s healthcare providers reveal any serious injury. There were no x-rays requisitioned at an appointment with her GP two days after the accident and the ARC intake assessment outlines minor injuries such as sprains and strains.

15The applicant’s frozen shoulder issues that pre-date the accident were documented in a disability certificate (“OCF-3”) prepared by Dr. Joza on January 22, 2021. The CNRs from the applicant’s treatment at ARC document her reports of pain in the neck, left shoulder, and lower back. The assessor found that she had stiff and painful movements in the back and shoulder, concluding that the prior frozen shoulder issue was manifesting, with sprains and strains present in the neck and back. The treatment records evolve over time to include descriptions of mechanical low back dysfunction.

16Neither of the respondent’s s. 44 assessors, Drs. Chaudry and Kruger, both specialists in family medicine, found evidence of any injury that was outside the MIG.

17Dr. Chaudry assessed the applicant on June 7, 2021, and found no evidence of neurological or radicular findings related to the subject accident. He concluded that the applicant’s injuries were soft tissue in nature, that her prior history of having a frozen shoulder condition had resolved, and there was no evidence of impairment from a musculoskeletal perspective.

18Dr. Kruger assessed the applicant on May 5, 2022. He too found no evidence of any neurological or radicular injury and diagnosed sprains and strains of the cervical and lumbar spine. He noted that given her lack of progress after over a year of treatments at ARC, that she had likely plateaued and would not benefit from any further treatment of a similar nature.

19Thus, based on the evidence reviewed above, the applicant’s injuries fall within the definition of minor in s. 3 of the Schedule with regard to physical impairment.

Psychological Impairment

20The applicant relies on the findings of s. 25 assessor, psychologist Dr. McDowall, in a report dated December 23, 2021. The assessment was conducted by Vanessa Schembri under the direction of Dr. McDowall and included a clinical interview, testing, and a document review.

21While Dr. Joza’s CNRs validate that the applicant had a history of depression prior to the accident, the records confirm that the symptoms were under “good control” and only a low dose of medication was required.

22During the assessment, the applicant confirmed she had no depressive symptoms at the time of the accident but did so after. She also reported that she had returned to work despite the pain in her neck and shoulder. She described being more anxious and being afraid to drive in some situations.

23Dr. McDowall found that the applicant’s testing results, based on self-reported questionnaires, indicated mild to moderate symptoms with likely Post-traumatic Stress Disorder (“PTSD”). Dr. McDowall opined that the applicant met the criteria for a formal DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. She noted the condition was as a direct result of the accident and recommended 15 sessions of psychological treatment.

24While Dr. McDowall found that the applicant’s test scores were not elevated taken as a whole, they reached the threshold for a formal diagnosis once the applicant’s presentation at the clinical interview was accounted for. The report states that “during the clinical interview it was apparent that she was experiencing a number of depressive and anxiety symptoms”, and further, her pre-accident symptoms of depression had been exacerbated by the accident.

25Dr. McDowall’s conclusions differ from those of psychologist Dr. Ratti, who conducted his s. 44 assessment on June 28, 2021. During the assessment with Dr. Ratti, the applicant reported issues with sleep, mild to moderate anxiety when driving, and episodes of crying. However, she attributed the crying incidents to a situation at work, and confirmed she was able to continue with her usual day-to-day activities and had a normal social life.

26Dr. Ratti administered some of the same tests as Dr. McDowall with similar results – that is minimal to moderate symptoms. He concluded that the applicant was presenting with minimal emotional/psychological distress and did not meet the criteria for a DSM-5 mental health diagnosis. He considered both the testing results and clinical interview in his assessment of the applicant’s situation.

27At a follow-up assessment on April 8, 2022, the applicant voiced some psychological complaints. Dr. Ratti concluded that she had mild to possibly moderate anxiety that appeared to be related to her work life. His opinion that the applicant did not have a psychological impairment as a result of the accident remained unchanged. He found that she still did not meet the criteria for a mental health diagnosis.

28Dr. Ratti specifically noted that there was a lack of compelling evidence of a psychological impairment, given that over two and a half years had passed since the accident, without any other supporting medical evidence besides the singular findings of Dr. McDowall in the s. 25 report.

29I am not convinced by Dr. McDowall’s conclusion that the applicant has a psychological impairment as a result of the accident.

30There is no compelling evidence in the CNRs of the applicant’s GP or treatment providers at ARC that would strengthen Dr. McDowall’s diagnosis. Dr. Joza does not make any referral for psychological treatment, and the references to psychological complaints in the ARC records are minimal with an occasional mention of work-related stress.

31According to her report, Dr. McDowall’s diagnosis was formulated not because of the actual testing results, but despite them. While the majority of the applicant’s results were mild or below average, with a few elevated markers, Dr. McDowall gave weight to other observations made during the interview component when making her diagnosis. However, I note that the interview was conducted by a subordinate, and it is unclear from the report if Dr. McDowall was present at the interview or not. In any case, there are few details offered about these additional observations that lift the testing results to the level of a diagnosis.

32Further to the role played by the comportment of the applicant during the interview, there are what appear to be contradictory statements in the report. For example, under “Client’s Presentation” it is noted that “her overall emotional presentation was controlled”, but further on, in the “Summary” section, it is noted that during the interview the applicant was experiencing “a number of depressive and anxiety symptoms”. Without additional detail, the basis for these seeming contradictions is obscured, and there is less certainty for the reader about the basis for the diagnosis.

33As a result, the s. 25 report is less persuasive than the two separate assessments conducted approximately a year apart by Dr. Ratti – both with the same outcome. The conclusions in Dr. McDowall’s report are not backed up by the CNRs from the applicant’s GP and treatment providers at ARC, and the diagnosis passes over the actual testing results to place emphasis on elements of the clinical interview that are not laid out in enough detail to allow the reader to follow the assessor’s analysis and resulting conclusion.

34Accordingly, the applicant has not established that her injuries fall outside the MIG on the basis of a psychological impairment.

Conclusion

35I am persuaded by the respondent’s evidence. All three s. 44 assessors are aligned with regard to outcome that the applicant’s injuries from the accident fall within the MIG, and she does not suffer from either a physical or a psychological impairment as a result of the accident.

36Based on the evidence before me, I find that the applicant’s injuries from the accident are minor as defined by the Schedule. The applicant has not demonstrated that she has a psychological impairment as a result of the accident.

37The applicant remains subject to the MIG.

38There are no funds remaining in the MIG treatment limit of $3,500.00. Consequently, an analysis of whether or not the disputed treatment plans are reasonable and necessary is not required.

Interest

39No interest is owed as no benefits are overdue.

ORDER

40I order that:

i. The applicant is subject to the MIG.

ii. The applicant is not entitled to the treatment plans or interest.