Watson v. The Co-Operators Insurance Company, 2024 CanLII 4257

Licence Appeal Tribunal

Citation: Watson v. The Co-Operators Insurance Company, 2024 ONLAT 21-012409/AABS

Licence Appeal Tribunal File Number: 21-012409/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:

Evelyn Watson

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Terio Francis, Counsel

For the Respondent: Daniel M. Himelfarb, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Evelyn Watson (“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 (the “Schedule”). The applicant was denied benefits by The Co-Operators Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties attended a case conference on September 12, 2022, and a Case Conference Report and Order was issued to the parties on October 12, 2023. The applicant was ordered to provide her written submissions 30 calendar days prior to the hearing, while the respondent was ordered to provide its submissions 14 calendar days prior to the hearing.

3The respondent’s written submissions were filed late. They were due on June 9, 2023, but were not filed until June 30, 2023. The respondent filed a Notice of Motion requesting an extension of the time for service of its submissions. The motion was heard in writing, and by Motion Order dated July 20, 2023, Vice Chair Lindsay Lake denied the respondent’s motion. Vice Chair Lake found that the respondent was provided with the Notice of Hearing on two occasions, and there were no exceptional circumstances to warrant an extension of the deadline.

4Given that the submissions were filed late, and the motion to extend the deadline was denied, I have not considered the respondent’s late-filed submissions in my analysis.

ISSUES

5The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
2. Is the applicant entitled to a medical benefit in the amount of $4,257.50 for psychological treatment proposed by Elite Specialist Group in a treatment plan dated February 23, 2022?
3. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment proposed by CleoCare Health & Wellness in a treatment plan dated June 22, 2021?
4. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for a psychological assessment proposed by Elite Specialist Group in a treatment plan dated September 27, 2021?
5. 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?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The applicant sustained a psychological impairment that is not a minor injury and not subject to the MIG or the $3,500.00 funding limit.

7The applicant is entitled to the disputed treatment and assessment plans, with interest.

8The respondent is not liable to pay an award pursuant to Regulation 664.

ANALYSIS

The Minor Injury Guideline

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 sequelae to such an injury.”

10An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

11The applicant submits that she suffers from chronic pain and psychological impairments that warrant removal from the MIG.

12The family doctor CNRs contain multiple visits for left shoulder pain and headaches. There are few mood-related symptoms noted other than occasional references to feeling stressed and her busy schedule. She was referred to a neurologist, a sports medicine specialist, and an orthopedic surgeon. Repeat imaging revealed a partial thickness tear in her left shoulder. The applicant attempted conservative management including physiotherapy, massage and had a cortisone injection, but ultimately was scheduled to undergo surgery on the left shoulder in May 2023.

13Physiotherapy records from Lifemark document limited ranges of motion of her neck and left shoulder, and that her shoulder pain worsened with activity.

14The applicant relies on a psychological assessment completed by Ms. Helen Ilios (registered psychotherapist) and Mr. Michael Decaire (clinical psychologist), dated December 30, 2021.They noted that the applicant returned to work on regular hours and duties after the accident, but required more frequent breaks and took longer to complete her work. The applicant was reportedly limited in her ability to lift carry, reach overhead etc. due to her physical pain. Her children were one year old and five years old at the time of the accident. She struggled with self care tasks and experienced difficulty with chores and caring for her children. She was irritable with her husband and children. Her husband helped with the chores and taking care of the children. She was unable to fully participate in her former gym routine. The applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood and specific phobia, situational type (driver, passenger) as result of the accident.

15That report is corroborated by the treatment session notes of a psychotherapist, Ms. Nicole Presutti from Elite Specialist, commencing in March 2022. The applicant reported feelings of guilt as a parent and spouse, driving anxiety, poor sleep, waking in a panic at night, and stress at work. She reported feeling overwhelmed, anxious, and depressed. She was having difficulty adjusting to changes since the accident. Her relationship with her spouse had changed since the accident, and they had talked about separating. In July 2022 the applicant reported that her mother-in-law recognized that she was struggling and was moving in for five months to help provide support around the house with cooking, cleaning and childcare. Her goal was to return to physiotherapy now that she had someone who could drive her to treatment. I find that these records corroborate the findings of the psychological assessment, and indicate that the applicant was suffering from a psychological impairment.

16I find that the applicant has proven on a balance of probabilities that she is suffering from psychological symptoms such that she should be treated outside the monetary limits of the MIG.

Psychological Assessment and Treatment

17The plans for a psychological assessment (dated September 27, 2021) and psychological treatment (dated February 23, 2022) were proposed by Mr. Decaire. As noted above, the applicant underwent the assessment and was diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The assessors recommended that the applicant participate in psychological treatment and submitted the treatment plan. The respondent denied the assessment on the basis that there were no psychological impairments identified in the clinical notes and records of the family doctor, and it believed the applicant’s injuries fell within the MIG. No insurer’s examination was completed.

18I am persuaded that both plans were reasonable and necessary, first to evaluate the applicant and determine the nature and extent of any psychological condition, and then to treat the psychological symptoms reported to her providers, as noted above.

Chronic Pain Assessment

19The chronic pain assessment plan was proposed by a nurse practitioner, Kayla Adebajo, in a plan dated June 22, 2021. The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

20The plan was denied following a physiatry assessment with Dr. Zabieliauskas, dated August 23, 2021. He reviewed file documentation including the available clinical notes and records of the family doctor, examined the applicant and diagnosed uncomplicated soft tissue injuries.

21I am persuaded that this plan was reasonable and necessary because the applicant continued to follow up with her family physician in relation to her ongoing left shoulder pain and headaches, which her doctor characterized as chronic. Early investigations revealed a partial shoulder tear and she was referred to a sports medicine specialist, Dr. Jin. In January 2020 Dr. Jin noted that she had chronic left shoulder pain. The applicant had further consultation with a neurologist, Dr. Sawa in March 2020 to investigate her ongoing pain. The EMG study was normal and he suggested she undergo an MRI to rule out cervical root compression. The applicant continued to attend physiotherapy. Dr. Sawa saw the applicant again in October 2020 and reviewed the MRI, but found no root compression and he had no explanation for her symptoms. The family doctor prescribed amitriptyline in January 2021 to try to manage her chronic headaches and chronic shoulder pain. In March 2021 he noted that she had a supraspinatus tear with ongoing restriction of her range of motion. The applicant was referred back to Dr. Jin in April 2021 for her worsening shoulder tear. The applicant had a consultation with an orthopedic surgeon, Dr. Hall in September 2021, and had a steroid injection. She followed up for further injections in 2022, and documentation shows that she ultimately opted to undergo left shoulder surgery in May 2023.

22Given the longstanding nature of the applicant’s pain, her continued reports of pain to assessors, despite various investigations and treatments and ultimately surgical intervention, I find that it was reasonable and necessary for the applicant to undergo a chronic pain assessment to identify any further investigations or treatments that may be required to alleviate her symptoms.

23The applicant has met her burden to prove that the chronic pain assessment was reasonable and necessary.

Interest

24In view of my findings above, the applicant is entitled to interest on the disputed benefits pursuant to s. 51 of the Schedule.

Award

25The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

26The applicant submits that the respondent unreasonably withheld her benefits despite being in possession of her medical records confirming her impairments, and in denying her psychological treatment and assessment without obtaining a medical opinion.

27While I have found that the applicant is out of the MIG and entitled to the treatment plans in dispute I do not find that the respondent acted unreasonably in its denials. It relied on the available medical evidence. It was not required to obtain an insurer’s examination. I am not persuaded that the respondent’s denials were unreasonable, frivolous, vexatious, or in bad faith.

ORDER

28The applicant sustained a psychological impairment that is not a minor injury and not subject to the MIG or the $3,500.00 funding limit.

29The applicant is entitled to the disputed treatment and assessment plans, with interest.

30The respondent is not liable to pay an award pursuant to Regulation 664.