Licence Appeal Tribunal File Number: 22-000947/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:
Colleen Buma
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
VICE-CHAIR:
Craig Mazerolle
APPEARANCES:
For the Applicant:
Arthur Camporese, Counsel
For the Respondent:
Olga Elmanova, Counsel
HEARD:
In Writing
OVERVIEW
1Colleen Buma, the applicant, was involved in an automobile accident on September 11, 2021, 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, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Following a videoconference hearing held from June 12 – 14, 2023, the Tribunal released an amended decision on September 28, 2023. The Tribunal found the applicant’s accident-related injuries were predominantly minor and therefore subject to the Minor Injury Guideline (“MIG”). The Tribunal also found the applicant was not entitled to an income replacement benefit (“IRB”), two treatment plans, interest, or an award.
3On March 22, 2024, the Tribunal released a reconsideration decision finding an error of law in the initial decision: Buma v. TD Insurance Meloche Monnex, 2024 CanLII 23470 (ON LAT). When discussing the initial decision, Vice-Chair Logan summarized the error of law as follows at paragraph 13:
At paragraph 3 of the decision, the Tribunal indicates that the respondent raised the preliminary issue of whether the applicant’s psychological injuries meet the definition of “accident” as defined by the Schedule. No such preliminary issue was identified in the Case Conference Report and Order… and neither party has argued that this preliminary issue was raised at the hearing. Of note, the identification of this preliminary issue is at odds with the Tribunal’s finding, at paragraph 6 of the decision, that the parties agreed that there was an accident as defined by section 3(1) of the Schedule.
4Vice-Chair Logan ordered a rehearing of all the issues in dispute by a different adjudicator. The respondent provided a transcript of the initial hearing to the Tribunal and the applicant on April 12, 2024.
ISSES
5The 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 MIG limit?
ii. Is the applicant entitled to an IRB in the amount of $400.00 per week from September 2, 2022 to date and ongoing?
iii. Is the applicant entitled to $2,200.00 for psychological services, proposed by Kaplan and Levitt in a treatment plan/OCF-18 (“plan”) submitted October 12, 2021 and denied December 23, 2021?
iv. Is the applicant entitled to $6,783.68 for psychological services, proposed by Kaplan and Levitt in a plan submitted February 25, 2022 and denied March 18, 2022?
v. 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?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find the applicant has established that she sustained a non-minor injury as a result of the accident. She is entitled to removal from the MIG. I further find the applicant has established entitlement to the two treatment plans.
7I find the applicant has established entitlement to an IRB in the amount of $400.00 per week from September 2, 2022 to date and ongoing, minus any deductions in accordance with s. 7(1) of the Schedule.
8The applicant is entitled to interest in accordance with s. 51 of the Schedule.
9The applicant has not established entitlement to an award.
ANALYSIS
Minor Injury Guideline
10Based on my conclusion that she sustained a psychological impairment as a result of the accident, I find the applicant has met her onus to establish removal from the MIG.
11The main means of removal from the MIG is when an insured person can demonstrate that they have sustained an accident-related impairment that is not “predominantly a minor injury.” A “minor injury” is defined at s. 3(1) of the Schedule. This definition does not include psychological impairments. The applicant has the onus of establishing removal on a balance of probabilities.
12The applicant submits the accident exacerbated her pre-accident psychological issues. She also argues that the accident led to depression and anxiety that were not present before. The applicant accepts that she has a history of psychological complaints. However, she argues that her assessors’ reports and the notes from the respondent’s psychological assessor, Zubina Ladak, together confirm that she sustained an accident-related impairment. Finally, the applicant adds that her mental health was improving prior to the accident.
13The respondent contends that the records from prior to the accident are inconsistent with the applicant’s claim that her psychological health was improving. For instance, the applicant attended a sleep clinic less than a week before the accident for insomnia, and she was appealing the denial of short-term disability benefits. The respondent also submits that the opinion of Ms. Ladak should be afforded more weight than the applicant’s assessors. According to the respondent, Ms. Ladak was the only assessor who completed a full pre- and post-accident analysis of the applicant’s condition. As such, her opinion that the applicant’s current psychological condition is primarily related to past trauma (not the accident) is more in line with the post-accident records.
14I am satisfied that the applicant has established (on a balance of probabilities) that she sustained a psychological impairment as a result of the accident.
15First, I find the medical evidence shows that the applicant sustained several psychological complaints that were largely absent prior to the accident, namely symptoms of depression and driving anxiety. The applicant’s test results from the two assessments with Ms. Ladak both registered elevated levels of depression, namely, severe scores on the BDI-II. Then, while she scored in the average range on the P3’s depression scale in December 2021, her score increased to the above average range when it was administered again in July 2022. These complaints of depression were not apparent in the pre-accident clinical records. In fact, just before the accident, the applicant reported to her family physician, Dr. Imre Szilvassy, that she “does not feel depressed” (dated June 9, 2021).
16I do note that, in the applicant’s psychological assessment report from Drs. Geoffrey Mok and Ronald Kaplan (dated March 8, 2022), there was a reference to how “she might have some depression symptoms prior to the MVA”. However, they found the applicant could not “elaborate on what specific symptoms were present.” Therefore, considering the vague nature of this post-accident self-report, I place little weight on this brief reference.
17Ms. Ladak also reported that the applicant experienced increased driving anxiety, though she concluded in her first report that these “mild emotional difficulties” met the definition of a minor injury. Seen in isolation, I would have placed greater weight on this conclusion about the complaints of driving anxiety. However, when understood alongside the applicant’s other symptoms, I find these complaints provide further evidence of a psychological impairment caused by the accident.
18Turning to the exacerbation of her pre-accident psychological symptoms, I find the applicant’s testimony provides a compelling account of how her sleep issues intensified after the accident. In particular, she testified that her pre-accident insomnia became night terrors, screaming, checking the doors are locked, etc. I conclude that this qualitative shift in her sleep issues is indicative of a significant exacerbation of her pre-accident concerns.
19I then find her partner’s testimony provides corroboration for this account. Her partner testified that he witnessed “night terrors” and “screaming” following the accident. These observations lend credence to the position that the applicant’s testimony is inconsistent with the overall factual matrix.
20Finally, I highlight the report of Drs. Mok and Kaplan who diagnosed the applicant with an accident-related psychological impairment. The respondent took issue with the reliability of their report, submitting that they failed to perform a pre- and post-accident analysis of the applicant’s condition. However, I find this submission does not fully capture the scope of their analysis. Rather, there are several references to the applicant’s pre-accident trauma and treatment. It is reasonable to infer that this information formed part of their diagnosis. The respondent also contended that they relied heavily on the applicant’s self-reports, but, again, I find there was a comparison of her clinical interview responses to her test results. The pair also reviewed test results from Ms. Ladak in reaching their diagnosis.
21Overall, I find the exacerbation of her pre-existing sleep issues—along with new complaints of depression and driving anxiety—together establish that the applicant sustained an accident-related psychological impairment.
22Turning to its other arguments, the respondent asks the Tribunal to disregard the partner’s testimony as self-interested. It also submits that the pair only started dating shortly before the accident. I do not find these arguments are compelling. To start, the submission about the self-interested nature of his testimony is speculative. With no concrete evidence, I do not place much weight on this argument. I also note that the partner accepted when his perspective may be of limited value, e.g., his lack of medical training. Further, though I recognize that the pair only began dating several months before the accident, there was sufficient time for him to gain an informed perspective on the applicant’s pre- and post-accident sleep habits. Specifically, he testified that they were spending nights together consistently in the weeks prior to the accident.
23The respondent then argues that there are no references to psychological complaints in the post-accident records of Dr. Szilvassy, despite the applicant’s history of reporting various concerns to her family physician. I recognize that the post-accident records are mainly concerned with issues unrelated to the accident. Yet, there are still references to the psychological impact of the accident, namely, an October 6, 2021 letter where Dr. Szilvassy endorsed “psychological assessment and treatment”. There is also a reference to the psychological assessment report completed by Drs. Mok and Kaplan in a note from March 8, 2022. Therefore, considering Dr. Szilvassy was aware of this proposed “assessment and treatment” in the weeks following the accident, I can infer that the GP likely assumed they did not have to discuss the applicant’s psychological complaints. Rather, Dr. Szilvassy likely assumed these complaints were being addressed by other healthcare practitioners.
24The respondent also highlights the complaints the applicant made to a sleep clinic just prior to the accident. For the reasons above, I find the sleep issues she reported to this clinic prior to the accident intensified following the accident, namely, her insomnia became night terrors and screaming. Similarly, though the respondent highlights the short-term disability appeal, I again accept that there was both exacerbation of pre-existing complaints and the onset of new ones.
25Finally, a unique aspect of this case is the “dashcam video”. In the immediate aftermath of the accident, a witness called the applicant over to show her a video that had been taken of the accident. In the background of the video, the applicant could see her childhood home. According to the applicant, this image sparked difficult, yet incomplete, memories of her childhood. She watched the video several more times following the accident.
26The respondent made extensive submissions about the causation issue it believed this video presented to the applicant’s case. Briefly, if the Tribunal accepted that the applicant sustained psychological impairments, the respondent argued that they are largely attributable to the video—a disconnect that means she has not established a causal link with the accident. This opinion was reflected by Ms. Ladak who wrote the applicant “reported that her mood declined following the subject accident upon viewing the dashcam footage.” The respondent also argued that “seeing the home in the background” does not qualify as an “accident” under the Schedule, however, as noted above, this argument was addressed on reconsideration.
27I do not agree with this submission. Again, the applicant testified that she first viewed the video in the immediate aftermath of the accident. I find it is, therefore, reasonable to view the video as a part of the accident—akin to someone left haunted by graphic images they witnessed during an accident they were involved in. As such, I am satisfied that any discomfort caused by viewing the video could be seen as a part of the subject accident.
28Further, I note that, despite being informed of the video, Drs. Mok and Kaplan concluded that the applicant sustained an accident-related impairment.
29Overall, I find the applicant has established (on a balance of probabilities) that she sustained an accident-related psychological impairment. This impairment merits removal from the MIG.
Psychological Treatment Plans
30I find the plans for psychological services and a psychological assessment are both reasonable and necessary, and, therefore, they are payable.
31Entitlement to medical and rehabilitation benefits is determined by ss. 15 and 16 of the Schedule. An insured person has the onus of demonstrating—on a balance of probabilities—that the proposed treatment goals, services/items, and expenses listed in a treatment plan are reasonable and necessary as a result of impairments caused by the accident.
32The treatment plan for a psychological assessment proposes funding for both an assessment and a $200.00 fee for completing the treatment plan. The proposed goals include providing “required information to guide treatment/rehabilitation to restore functioning”. Then, for the psychological services plan, the applicant is seeking funding for 20 sessions of mental health therapy, educational materials, testing, etc. The goals include “resuming activities of normal living and pre-accident work activities, where possible.”
33The applicant submits that the respondent’s denial of the plans based on the MIG was improper, as she sustained non-minor injuries. She also argues that the respondent’s denials breached s. 38(8) of the Schedule. The respondent contends that the applicant did not sustain a psychological impairment as a result of the accident. It also submits that the applicant did not mitigate harm from the accident, e.g., she did not use the Employee Assistance Plan (“EAP”), and there was likely funding for psychological services through her employer. Finally, the respondent challenges the s. 38(8) argument as “trial by ambush”, as it claims these concerns were first raised during closing submissions.
34As detailed above, I find the applicant has demonstrated that the accident caused an accident-related psychological impairment. For this reason, I then find that an assessment and services aimed at resolving this impairment are necessary. I also have no concerns about the requested expenses in the plans. Taken together, I find the two treatment plans are reasonable and necessary.
35Turning to the respondent’s arguments about mitigation, I do not find them to be compelling. Aside from the applicant testifying that she was unsatisfied with her prior experience with the EAP (an answer corroborated by her assessment with Drs. Mok and Kaplan), I find the respondent’s other arguments about mitigation are speculative.
36Finally, the respondent argues that there should be an adverse inference drawn, as the applicant did not provide records from the treatment she allegedly paid for out-of-pocket. The respondent also submits that there were records provided to the applicant’s experts that it did not receive. Even if I held an adverse inference due to an alleged failure to provide treatment notes, I am satisfied that the records before me are still sufficient to establish that the applicant sustained an accident-related impairment on a balance of probabilities. Further, even if I remove my reliance on Drs. Mok and Kaplan’s report, I still find the remaining records provide a sufficient basis for establishing an impairment and the reasonable and necessary nature of the plans (on a balance of probabilities).
Income Replacement Benefit
37I find the applicant has established entitlement to an IRB in the amount of $400.00 per week from September 2, 2022 to date and ongoing, minus any deductions in accordance with s. 7(1) of the Schedule.
38Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. This test becomes more stringent after 104 weeks post-accident, as the insured person must then show a “complete inability” to perform any employment or self-employment that they are reasonably suited to perform by way of experience, training, and education.
Substantial Inability
39The applicant is basing her claim for the pre-104 week IRB on her employment as a postal clerk in a mail sorting facility. She was not working at the time of the accident, as she had been off on a medical leave that started on June 2, 2021.
40To apply the “substantial inability” test, the Tribunal must determine:
(a) What were “the essential tasks” of the pre-accident employment?
(b) What, if any, impairments were caused by the accident?
(c) Did at least one of the applicant’s accident-related impairments result in a “substantial inability” to perform “the essential tasks”?
41According to the respondent’s Physical Demands Analysis (completed by Robert Bullard, dated August 4, 2022), the applicant’s pre-accident employment involved eight-hour shifts where the primary task was sorting mail into a series of slots. This work was mainly done while sitting, though the applicant would occasionally use a cart to move mail to her workstation. The applicant also regularly used a computer. I find this report is a comprehensive analysis of the pre-accident role, so I can then conclude that “the essential tasks” of the applicant’s pre-accident role comprised of concentrating on repetitive tasks for an extended period.
42Turning to the next stages of the pre-104 week test, the applicant relies on the psychological impairment discussed above, as well as an injury to her left arm and shoulder, to claim she sustained a substantial inability. In support of the alleged physical impairment to her arm and shoulder, the applicant cites a functional capacity evaluation from Mr. Bullard (dated August 4, 2022), where he found she did not have enough strength in her left arm to work as a postal clerk.
43Citing her appeal of a short-term disability denial (along with the lack of psychological complaints in the family physician’s records), the respondent argues that the applicant has not demonstrated a causal link between her inability to work and the accident. Or, as summarized by the respondent during closing submissions: “there was no evidence presented that but for the accident, [the applicant] would have healed from her ongoing and severe sleep difficulties.” To counter the applicant’s position on the physical impairment, the respondent highlights the opinion of its physiatry assessor, Dr. Seyed Hossein Hosseini (report dated August 4, 2022).
44Relying on my findings above, including my finding about how she sustained an accident-related exacerbation of pre-existing sleep issues, I conclude the applicant’s psychological impairment had a significant impact on her ability to perform the essential tasks of a postal clerk. Specifically, I find that exacerbation of her pre-accident sleep issues would have negatively impacted her ability to maintain the level of concentration needed to perform this role. As noted in the Physical Demands Analysis, the applicant had to repeatedly ensure that pieces of mail were inserted into their correct, corresponding slots. She also had to use a computer to confirm information about the mail. I can infer that the level of concentration needed to perform these repeated tasks over an eight-hour shift would be negatively impacted by poor sleep marked by night terrors and anxiety.
Complete Inability
45For the post-104 week period, the standard shifts to an analysis that requires the Tribunal to first determine what employment or self-employment the insured is “reasonably suited by education, training or experience”. This assessment involves an appraisal of the applicant’s work history, education, and training.
46According to Ms. Ladak’s August 2022 report, the applicant started working in mail delivery in “the mid-2000s”. Initially hired as a letter carrier, the applicant transferred to her pre-accident role as a postal clerk in 2020. This shift was brought on due to psychological trauma caused by an assault in the late 2010s. She also reported pain in her knees. Drs. Mok and Kaplan added in their report that she had worked in “various general labour jobs”.
47Regarding her education and training, Ms. Ladak noted that the applicant completed her high school equivalency, as well as a three-month certificate in Business Administration.
48I find the applicant’s years of working in mail delivery and sorting means she is reasonably suited to perform employment that largely mirrors the work she was performing prior to the accident. Specifically, she is reasonably suited to employment and self-employment involving concentration and the performance of repetitive tasks over an extended period. For this reason, I then conclude that her psychological impairment would cause a complete inability to perform any role involving concentration and the performance of repetitive tasks. Similar to my finding above for the pre-104 week period, the concentration needed to perform the same tasks over an extended period would be significantly and negatively impacted by night terrors and poor sleep.
49There was no dispute concerning quantum, i.e., $400.00 per week. However, the respondent submits that it is entitled to offset any STD benefits, if the applicant is ultimately approved for STD payments. Deductions to an insured person’s IRB payments are allowed in accordance with s. 7(1) of the Schedule. Therefore, the applicant is entitled to $400.00 per week from September 2, 2022 to date and ongoing, minus any deductions in accordance with s. 7(1).
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
51There was discussion over whether the disputed treatment plans had been incurred. I find it is not necessary to make a ruling on this point, as my order is limited to finding that the two plans are payable, not that the applicant is entitled to a specific amount. Therefore, in addition to any interest owing for overdue IRB payments, the applicant is entitled to interest if there are any overdue payments of these plans, pursuant to s. 51.
52I will note that, in opening submissions, the applicant’s representative briefly noted that “I don’t believe there was ever interest apportioned” to a lump sum IRB payment that the applicant had received. This issue was never pursued in closing submissions. I find I do not have a sufficient basis to make a ruling.
Award
53Under s. 10 of O. Reg. 664, 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. I find the applicant has not demonstrated entitlement to an award.
54The applicant submits the respondent breached s. 38(8) of the Schedule when denying the two treatment plans. Then, for the IRB, the applicant argues that the respondent was inflexible in its denial, especially as Mr. Bullard found she did not have the physical strength needed to perform her pre-accident job. The respondent contends there is no evidence of unreasonable behaviour.
55An insurer’s behaviour is not measured against perfection. It is entitled to consider the records before it when adjusting a claim, and I am satisfied that the respondent considered the medical evidence before issuing its denials. For instance, though the applicant contends it should have relied on the opinion of Mr. Bullard, the respondent also had a report from Dr. Hosseini that found she did not merit an IRB on a physical basis. Further, I find the applicant has not provided a compelling reason to explain why a breach of s. 38(8) would merit an award. In sum, I find the applicant has not demonstrated entitlement to an award.
ORDER
56For the reasons above, I make the following orders:
i. The applicant is removed from the monetary and treatment limits of the MIG.
ii. The two treatment plans in dispute are payable.
iii. The applicant is entitled to payment of an IRB in the amount of $400.00 per week from September 2, 2022 to date and ongoing, minus any deductions in accordance with s. 7(1) of the Schedule.
iv. The applicant is entitled to interest, pursuant to s. 51 of the Schedule.
v. The applicant has not demonstrated entitlement to an award.
Released: August 9, 2024
__________________________
Craig Mazerolle
Vice-Chair