Leung v. Economical Insurance Company, 2024 CanLII 59548

Citation: Leung v. Economical Insurance Company, 2024 ONLAT 22-000489/AABS

Licence Appeal Tribunal File Number: 22-000489/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:

Serena Leung

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant:

Serena Leung, Applicant

Tal Eshel, Counsel

For the Respondent:

Economical Insurance Company

Kayly Machado, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Serena Leung, the applicant, was involved in an automobile accident on April 17, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The respondent, Economical Insurance Company denied the treatment in dispute on the basis that she sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Licence Appeal Tribunal- Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The 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 limit and in the MIG? Note: The parties agree the MIG limits have not been exhausted.

ii. Is the applicant entitled to $4,474.98 for psychological services, proposed by Alcat Assessments in a treatment plan (OCF-18) (“plan”) dated November 15, 2020?

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

RESULT

4The applicant has demonstrated that removal from the MIG is warranted. The OCF-18 for psychological services is reasonable and necessary and is a benefit to which the applicant is entitled. Interest applies on any overdue benefits.

ANALYSIS

The applicant has demonstrated that removal from the MIG is warranted

5The applicant has demonstrated that she suffers from chronic pain that warrants removal from the MIG.

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. 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 in accordance with the MIG. However, the applicant may receive funding for treatment beyond the $3,500.00 limit if she can provide evidence that she does not have a minor injury or that she has a pre-existing condition documented by a health practitioner that prevents maximum medical recovery under the MIG in accordance with s. 18(2) of the Schedule. She may also be removed from the MIG if she can provide evidence that she suffers from chronic pain or a psychological impairment that prevents her recovery under the MIG. The applicant bears the burden of proof to show that her impairments justify removal from the MIG.

7The applicant submits that she should be removed from the MIG on four grounds:

a. her post-traumatic headaches and facetogenic neck pain;

b. her pre-existing chronic knee pain;

c. her diagnosis of chronic pain as a result of the accident; and

d. her psychological impairments.

8The applicant relies on her Disability Certificate (OCF-3), the report of Dr. Sirota, psychiatrist, and various clinical notes of family physicians, Dr. Judith Kwok and Dr. Eunice Lam which includes consultation reports from Dr. Imrat Sohanpal of Allevio Pain Management and Dr. Vincenzo Basile, neurologist and treatment records. The applicant received diagnostic nerve block injections and cervical radiofrequency neurotomy by Dr. Sohanpal for cervicogenic headaches and facet joint irritation.

9In response, the respondent points to the applicant’s OCF-3 which reveals impairments that fall within the definition of minor injury. Further, it submits that treating neurologist, Dr. Basile found no nerve root impingement, radiculopathy or neuropathy on testing. The respondent relies on the Insurer’s Examination (“IE”) physiatry report of Dr. Dilkas and IE neurologist, Dr. Moddel, indicating the applicant’s neurological symptoms have resolved.

10I find that the applicant’s physical impairments fall within the definition of a minor injury under s. 3, as they are identified in the OCF-3, as sprain and strain type injuries and headaches. While the applicant points to the MRI’s of her brain, the findings were non-specific and interpreted by Dr. Basile as unrelated to the applicant’s symptoms. Further, diagnostic testing has found no objective sign of injury.

11The applicant submits that her pre-existing condition of bilateral knee pain constitutes a condition under s. 18(2) that warrants removal from the MIG. There is no indication in the medical documentation that the applicant’s pre-existing knee pain was aggravated by the accident.

12Where s. 18(2) requires compelling evidence of a pre-existing condition and a medical opinion that the pre-existing impairment would prevent maximal medical recovery under the MIG, I cannot find, on the evidence offered by the applicant, that she has met her burden. I was not directed to a medical opinion stating that her recovery from the minor physical impairments sustained in the subject accident is prevented by this condition if she is kept within the MIG.

13However, the Tribunal has determined that chronic pain with functional impairment warrants removal from the MIG, as same is not captured by s. 3 of the Schedule. The applicant points to the records of her family doctor and Dr. Basile providing a diagnosis of complex chronic pain with referral to a multidisciplinary rehabilitation program and psychological counselling. Dr. Basile also recommends anti-inflammatory medication. Further, Dr. Sohanpal performed diagnostic nerve blocks and neurotomy for de-sensitization of cervical facet joint irritation. Additionally, Dr. Sirota and Dr. Kwok have noted irritability with pain, which interferes with her performance at work.

14I am satisfied that the applicant has chronic pain as it was diagnosed by two qualified physicians which was uncontradicted by the evidence presented by the respondent. Dr. Kwok notes the applicant’s pain limitations at work and the fact that she’s been through four jobs since the accident. Dr. Kwok also notes functional limitations in completing heavier housekeeping tasks and difficulties driving. I find that the diagnosis of chronic pain, combined with the affect on the applicant’s function, warrants removal from the MIG on a balance of probabilities.

15I find that the applicant has psychological symptoms as a result of the accident. On May 13, 2020, Dr. Kwok diagnosed depressive symptoms and notes that the applicant is hesitant to take medications. In report dated August 21, 2020, Dr. Sirota recommended psychotherapy for adjustment disorder and somatic symptom disorder. Her symptoms reduce her ability to drive and perform at her pre-accident level of vocational functioning.

Is the plan for psychological services reasonable and necessary?

16To receive payment for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

17The applicant seeks payment for an OCF-18 in the amount of $4,474.98 for psychological services based on a pre-screen interview and Dr. Sirota’s diagnosis of adjustment disorder, somatic symptom disorder, chronic pain and vehicular anxiety. In response, the respondent challenges the qualifications of Dr. Sirota without obtaining an independent psychiatric report to contradict the findings of Dr. Sirota.

18Given Dr. Sirota and Dr. Kwok’s recommendations for psychological services in treatment of the applicant’s chronic pain condition, the results of the psychological pre-screen interview where she reports ongoing irritability associated with pain, vehicular anxiety and difficulty working, I find it is necessary for the applicant to undergo psychological therapy to develop coping strategies to deal with chronic pain and adaptation skills to improve her functional abilities.

19Where the applicant has expressed an interest in attending psychological treatment to address her emotional issues, I find it reasonable to fund the cost of these services at $2,761.88 for 15 sessions, at a rate of $149.61 per hour including the OCF form and HST is reasonable. I find the rate of $187.01 for 1.25 hour sessions plus additional costs of $1,092.16 for educational materials, planning, assessments and documentation to be unreasonable. The OCF-18 provides an explanation for the psychological effects of hyper-sensitization and the applicant’s heightened response to pain, so I am satisfied there is a reasonable basis to undergo the proposed therapy to alleviate her chronic pain symptoms. For these reasons, I find the applicant is entitled to the cost of the OCF-18 in dispute, plus applicable interest under s.51, if applicable.

ORDER

20The applicant has demonstrated that removal from the MIG is warranted. The OCF-18 for psychological services is reasonable and necessary in the amount of $2,761.88 and payable by the respondent. Interest applies on any overdue benefits.