Licence Appeal Tribunal File Number: 22-008220/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:
Nino Pavliashvili
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Rakesh Sharma, Paralegal
For the Respondent:
Hermina Nuric, Counsel
HEARD: Choose an item.
By way of written hearing
OVERVIEW
1Nino Pavliashvili, the applicant, was involved in an automobile accident on March 3, 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, Economical 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 (“MIG”) limit?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 14, 2021 to March 3, 2022?
iii. Is the applicant entitled to the following physiotherapy treatment plans as proposed by 101 Physiotherapy:
i. $3,419.90 submitted on March 10, 2020;
ii. $1,299.21 (partially approved in the amount of $1,086.40) submitted on June 11, 2020; and
iii. $2,378.72 submitted on August 10, 2020?
iv. Is the applicant entitled to a psychological assessment in the amount of $2,686.00 proposed in a treatment plan by Dr. Peter Waxer on May 5, 2020?
v. Is the applicant entitled to a chronic pain assessment in the amount of $2,460.00 submitted by 101 Assessments on January 19, 2021?
vi. Is the applicant entitled to a orthopaedic assessment in the amount of $2,460.00 submitted by 101 Assessments on March 15, 2021?
vii. Is the applicant entitled to a neurological assessment in the amount of $2,460.00 submitted by 101 Assessments on March 15, 2021?
viii. Is the applicant entitled to a neuropsychological assessment in the amount of $2,460.00 submitted by 101 Assessments on April 6, 2021?
ix. 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?
x. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
3The applicant has demonstrated on a balance of probabilities that her psychological symptoms and impairments justify treatment beyond the monetary limits of the MIG.
4The applicant is not entitled to a non-earner benefit from March 14, 2021 to March 3, 2022.
5The applicant is entitled to the treatment plan for $3,419.90 submitted by 101 Physiotherapy on March 10, 2020.
6The applicant is entitled to the treatment plan for $212.81, ($1,299.21 less $1,086.40 approved) submitted by 101 Physiotherapy on June 11, 2020.
7The applicant is entitled to the treatment plan for $2,378.72 submitted by 101 Physiotherapy on August 10, 2020.
8The applicant is entitled to the psychological assessment in the amount of $2,686.00 proposed by Dr. Peter Waxer on May 5, 2020.
9The applicant is entitled to the chronic pain assessment in the amount of $2,460.00 submitted by 101 Assessments on January 19, 2021.
10The applicant is not entitled to the orthopaedic assessment, neurological assessment, or neuropsychological assessment in dispute.
11The applicant is not entitled to an award under s. 10 of O. Reg. 664.
12The applicant is entitled to interest on any overdue payments pursuant to s. 51.
ANALYSIS
Application of the Minor Injury Guideline
13Section 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.”
14An 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.
15The applicant submits that she does not belong in the MIG as she has documented pre-existing injuries, chronic pain, and a psychological condition. The respondent disagrees.
16I find that the applicant has a psychological condition that warrants removal from the MIG.
17The applicant relies on the report of Dr. Carolina Vintu, registered psychotherapist, from March 9, 2021. Dr. Vintu, under supervision of psychologist Dr. Peter Waxer, diagnosed the applicant with Persistent Somatic Symptom Disorder with Predominant Pain: Severe, Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia: Situational Type: Vehicular. The applicant also refers to a note from her family physician, Dr. Milad, on March 7, 2020, where she reported insomnia and feeling stressed since the accident.
18The applicant reported to Dr. Vintu that she had sadness, frequent low moods, social withdrawal, impaired emotional regulation (irritability and a short temper), and excessive worries regarding her health and future prognosis. She had a decreased appetite, and lost weight as a result. Her sleep was disturbed, and her concentration and short-term memory were poorer. Although she was independent in her self-care tasks, she received assistance with vacuuming and cooking from a friend due to the pain in her arms and hands. The applicant reported anxiety related to operating a motor vehicle, and significant anxiety and nervousness when travelling as a passenger, stating “I am always worried” and “I always think someone will hit me”. She frequently berated the driver and excessively checked her surroundings. She was also worried about reckless drivers as a pedestrian.
19Dr. Vintu noted that the applicant had a moderate level of depression on the Beck Depression Inventory, a moderate level of anxiety on the Beck Anxiety Inventory, and a diagnosis of “Dysfunctional” on the Multidimensional Pain Inventory (MPI), which indicated that she experienced high pain impact, affective distress, and severe functional limitations. Dr. Vintu also administered the Symptom-Checklist-90-revised questionnaire, and found that the applicant’s symptoms revealed a pattern and magnitude in the clinical range.
20The respondent relies on the s. 44 report of Dr. Marc Mandel, psychologist, who assessed the applicant on January 28, 2021. Dr. Mandel wrote that the applicant had sleep difficulties because of discomfort. Her mood fluctuated depending on how well she slept. She was sad more often than prior, was easily fatigued, had difficulty with memory and concentration, was more argumentative with her family, and had stress related to her financial situation. She was also frustrated with her limitations. Although she continued to drive a vehicle, she was more nervous that an accident could occur. She did not experience nightmares or flashbacks of the accident, but did not like talking about it. She did not describe symptoms of panic attacks or generalized anxiety.
21Dr. Mandel administered the Personality Assessment Inventory (PAI), MPI, and Structured Inventory of Malingered Symptoms (SIMS). On the PAI, her clinical profile revealed “specific fears of anxiety surrounding some situations, likely experienced past trauma, discomforting level of anxiety and tension, an unusual degree of concern regarding physical function and health, and a significant depressive experience.” On the MPI, her results were generally in the average range, however it was significantly below average with respect to “General Activity”. I note that this was the only test administered by both Dr. Mandel and Dr. Vintu, and the results were similar. However, unlike Dr. Vintu, Dr. Mandel did not provide a diagnosis or any explanation of what these results mean. On the SIMS, her score was twice beyond the acceptable threshold, indicating the possibility of symptom magnification in certain areas.
22Dr. Mandel opined that there was “a lack of consistent objective information present that would support poor prognosis, DSM V diagnosis and/or suggest that she suffers clinically significant symptoms that would indicate a substantial psychological impairment or disability as a result of the subject motor vehicle accident at this time.” However, he stated that she had residual adjustment difficulties associated with the accident and ongoing pain.
23The respondent submits that Dr. Mandel’s report should be preferred over Dr. Vintu’s, as it screened for validity concerns, included a review of medical documentation, and was more consistent with the medical records. While I agree that it would have been preferrable if Dr. Vintu reviewed medical records before authoring her report, the respondent has not directed me to anything within Dr. Mandel’s report that was impacted by the medical records before him, or to what degree. Further, the testing that Dr. Vintu administered included validity measures, which showed no evidence of malingering.
24The respondent states that Dr. Vintu’s diagnosis of “persistent somatic symptom disorder with predominant pain” is a catch-all for any set of symptoms that otherwise do not meet the full criteria for any disorders. It argues that the DSM-V specifically states that it is not supposed to be used unless there are “decidedly unusual situations where there is insufficient information to make a more specific diagnosis.” The respondent argues that Dr. Vintu did not explain any “decided unusual situations”.
25I agree with the respondent that Dr. Vintu’s reasons for this particular diagnosis were not explained. However, I am not prepared to completely discount this diagnosis without the benefit of a psychological professional commenting on it. In any event, it was not the only diagnosis made.
26I also note that Dr. Mandel did not provide any reasons for his belief that the applicant’s condition did not merit a DSM-V diagnosis, despite the symptoms she reported to him. In fact, the applicant’s depression and anxiety appear to be in line with the symptoms Dr. Mandel described, and yet Dr. Mandel did not explain why he was unable to make a diagnosis. I prefer Dr. Vintu’s report as it was more detailed with respect to explaining her findings.
27The respondent argues that Dr. Vintu’s diagnosis of adjustment disorder with mixed anxiety and depressed mood should be viewed within the context of the fact that the Beck Anxiety and Depression Inventories only indicated moderate severity. The respondent has not explained why this diagnosis is not possible with moderate levels of anxiety and depression, and I accordingly cannot accept this argument without further evidence.
28The respondent states that the diagnosis of specific (vehicular) phobia is “never reconcilable with the fact that the Applicant has continued to drive post-accident”. The respondent has not provided any evidence for that assertion, and I have no reason to accept it.
29The respondent relies on MJ v. Wawanesa Mutual Insurance Company, 2020 CanLII 12777, where the Tribunal was not persuaded that the applicant’s psychological impairments were anything other than sequelae of his predominantly minor injuries. That case rested on its specific facts, including that the applicant told a physician that he was not experiencing psychological issues, and there were no psychological complaints within the notes of his family physician. I am not persuaded that this case is analogous.
30In the case before me, the applicant did complain to her family physician of insomnia and stress since the accident, albeit only once. The OCF-3 from Dr. Bill Nikols, chiropractor, on March 25, 2020, indicated that she was experiencing a loss of appetite, signs and symptoms of an emotional state, nervousness, and sleep disorder, and recommended a psychological assessment. The record from 101 Physio on March 6, 2020 states that the applicant was experiencing a loss of appetite, fear in a vehicle, and loss of sleep. Dr. Mandel described psychological symptoms in his report as well. For those reasons, I do not agree with the respondent that Dr. Vintu’s report is an outlier.
31For the reasons above, I find that the applicant has proven on a balance of probabilities that she has psychological conditions as a result of the accident that are not mere sequelae to minor physical injuries, and she accordingly does not belong within the MIG.
Non-Earner Benefit
32I find that the applicant is not entitled to a non-earner benefit (“NEB”) from March 14, 2021 to March 3, 2022.
33Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 [Heath], which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
34The respondent paid non-earner benefits up to March 14, 2021. It denied the benefit as a result of s. 44 reports from Dr. Mandel, Dr. Alikhan (general practitioner), and Gord Hirano (occupational therapist). All of these assessors found that she did not suffer a complete inability to carry on a normal life. In her submissions, the applicant did not make any comments with respect to these reports.
35The OCF-3 completed by Dr. Nikols on March 25, 2020, contemplated a disability of 9-12 weeks. There are no other OCF-3s before me that might substantiate an extension of the disability timeframe.
36The applicant filled out an OCF-12 indicating her activities of normal life on March 6, 2020, three days after the accident. She noted an inability to do a number of tasks independently, such as bathing, climbing stairs, standing, sitting, cooking, washing dishes, cleaning, laundry, snow shoveling, reading and remembering what she read, following a movie or TV show, and wordfinding. This is the only OCF-12 form before me.
37I also note that the applicant has not provided any medical records past April 2021, when she visited Dr. Milad because of a cold. Any records past that date were provided by the respondent and do not support the applicant’s position.
38The applicant reported to Dr. Mandel that she was able to handle all aspects of her self-care within 6 months. She also advised Dr. Mandel that prior to the accident she was working 20 hours per week as a cleaner and tutor, and that following the accident she could not return to work. However, she advised Dr. Vintu that she was working occasional jobs as a tutor. On July 27, 2021, the applicant advised her cardiologist, Dr. Datta, that she worked in a hotel. In addition, she advised her OBYGN on September 7, 2021 that she was actively trying to conceive another child. This does not lead me to believe that the applicant’s injuries were debilitating to the point where she was completely unable to carry on a normal life.
39I have very little information with respect to the applicant’s functional abilities past the date that her benefits ended. The applicant has not provided any medical records or reports indicating that she continued to meet the test for non-earner benefits after March 14, 2021. Considering she was able to return to various forms of work, it appears her functionality improved over time. I accordingly find that the applicant has not met her onus in proving that she was entitled to this benefit after March 14, 2021.
(a) $3,419.90 for physiotherapy, submitted by 101 Physiotherapy on March 10, 2020
40I find that this treatment plan is reasonable and necessary.
41To receive payment for a treatment and assessment plan under s. 15 and 16 of 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. To do so, 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 them are reasonable.
42The respondent states that this treatment plan was initially prepared on March 6, 2020, on the same date as an OCF-23. The treatment plan was submitted on March 10, 2020, but was subsequently withdrawn and replaced by the OCF-23 on March 18, 2020. The respondent submits that this treatment plan is not properly in dispute because it was withdrawn by the service provider, describes goods and services which the insurer already approved as part of the OCF-23, and pursuant to s. 38(5) it described goods and services the applicant was entitled to receive under the MIG.
43Section 38(5) states that an insurer may refuse to accept a treatment plan if it describes goods or services to be received in respect of any period during which an insured person is entitled to receive goods and services under the MIG. If the insurer refuses to accept the treatment plan for that reason, pursuant to s. 38(6) that refusal is final and is not subject to review by this Tribunal.
44There is no denial letter before me with respect to this treatment plan. The respondent has not provided any evidence to support the assertion that this treatment plan was withdrawn. The only evidence provided by the respondent was a copy of the OCF-23. I have no information with respect to whether the respondent refused to accept the treatment plan in accordance with s. 38(5). Without that evidence, I cannot conclude that s. 38(6) applies to prevent the applicant from disputing the denial at the Tribunal.
45The OCF-23 does not provide any details as to the type of treatment proposed, and just states “minor injury” and “supplementary goods and services” under the section for the description of services. The OCF-23 was for $2,200.00, whereas the treatment plan in dispute was for $3,419.90. Without further information, I cannot accept the respondent’s assertion that the goods and services were already provided. I must accordingly conduct an analysis of whether the treatment plan is reasonable and necessary.
46I accept that the applicant had pain and limitations at the time the treatment plan was submitted. She reported to Dr. Milad on March 7, 2020 that she had pain in her neck, lower back, both shoulders, left wrist, and both knees. Dr. Milad recommended that the applicant go for rehabilitation during visits on March 7 and March 23, 2020. I find that it was entirely reasonable for her to have sought treatment at this time.
47The treatment plan consisted of 12 sessions of physical rehabilitation, 4 sessions each of manual therapy, osteopathy, and acupuncture, an initial assessment, an education session, ice/heat pack, lumbar back support, TENS unit accessories, cervical pillow, pain relief cream, and transportation. I have no reason to disagree with the recommendations in the treatment plan. The goals of the treatment plan were pain reduction, increased range of motion, increased strength, and a return to activities of normal living. I find that the goals of the treatment plan were reasonable and achievable with the proposed treatment, and that they would be established at a reasonable cost. I therefore find that it was reasonable and necessary at the time.
(b) $1,299.21 (partially approved in the amount of $1,086.40) for physiotherapy, submitted by 101 Physiotherapy on June 11, 2020
48I find that the applicant is entitled to the $212.81 in dispute for this treatment plan.
49This treatment plan was denied because the applicant depleted her funds under the MIG. The respondent did not make any submissions with respect to this treatment plan specifically.
50The treatment plan in dispute consisted of a re-assessment, 7 sessions each of physical rehabilitation and acupuncture, and an exercise mat. The goals of the treatment plan were pain reduction, increased range of motion, increased strength, and a return to activities of normal living.
51Despite the denial, the applicant reportedly continued to attend twice per week. The applicant complained to Dr. Milad on June 15, 2020 that she had pain to her right shoulder, right wrist, right forearm, lower back, knees, and ankles. I find that at the time the treatment plan was submitted, only three months after the accident, it was reasonable for the applicant to have continued with her facility-based treatments. The goals were reasonably achievable, and the cost was reasonable.
(c) $2,378.72 for physiotherapy, submitted by 101 Physiotherapy on August 10, 2020
52I find that this treatment plan is reasonable and necessary.
53The treatment plan proposed 12 sessions of physical rehabilitation, 6 sessions of “therapy, multiple body sites”, a personal massager, an assessment, TENS unit accessories, and 6 sessions of acupuncture.
54The respondent did not make any specific submissions with respect to this treatment plan.
55On September 24, 2020, the applicant advised Dr. Milad that she still had pain in her right forearm and right shoulder. Dr. Milad recommended rehabilitation, and Advil or Tylenol. The applicant returned on October 13, 2020 due to severe pain in her right shoulder and arm. She was prescribed Tylenol #3. The evidence shows that treatment was recommended and reasonable around the time that the treatment plan was submitted.
56The applicant underwent a s. 44 assessment with Dr. Neetan Alikhan, general practitioner, on September 22, 2020. He opined that the applicant sustained uncomplicated soft tissue and sprain/strain injuries in the accident, and that symptomatic recovery for such injuries would generally be anticipated within 3-6 months of the initial traumatic event. I note that this treatment plan was submitted 5 months after the accident, so it was within the window when it would be expected by Dr. Alikhan that she still be symptomatic.
57Despite the denial, the applicant continued to attend treatment, which she described to Dr. Vintu and Dr. Mandel as being helpful. The goals of the treatment plan were pain reduction, increased range of motion, increase in strength, and a return to activities of normal living and pre-accident work activities. I find that further treatment was reasonable in order to achieve those goals at the time, and the cost of the treatment plan was reasonable. I accordingly find that the proposed treatment plan was reasonable and necessary at the time it was submitted.
(d) $2,686.00 for a psychological assessment, submitted by Dr. Peter Waxer on May 5, 2020
58I find that the psychological assessment was reasonable and necessary.
59The goals of the treatment plan were to assess the applicant’s psychological condition and recommend possible psychological treatment if required. In determining whether a psychological assessment is reasonable and necessary, the applicant must prove on a balance of probabilities that it was reasonable and necessary to explore the possibility that she suffered from a psychological impairment (see: 17-003735 v. Certas Direct Insurance Company, 2018 CanLII 39445).
60The respondent did not make any specific submissions regarding this treatment plan. Given my comments above, a psychological assessment was reasonable and necessary to determine the extent of the applicant’s injuries and determine whether treatment was warranted.
(e) $2,460.00 for a chronic pain assessment, submitted by 101 Assessments on January 19, 2021
61I find that the proposed chronic pain assessment is reasonable and necessary.
62A treatment plan for a chronic pain assessment was submitted on January 19, 2021 by Dr. Grigory Karmy, general practitioner. Dr. Karmy wrote in the treatment plan that the applicant’s symptoms were consistent with chronic pain syndrome characterized by pain which was exacerbated by attempts increase daily activities, and has existed for longer than six months. As she was 10 months post-accident without resolution of her symptomatology, her persistent pain has now become chronic. The goals of the treatment plan were pain reduction, restoring functional tolerance and endurance, and returning to activities of normal living.
63In determining whether the assessment is reasonable and necessary, I must consider whether it is reasonably possible that the applicant suffers from chronic pain syndrome (R.V. v. Aviva General Insurance, 2019 CanLII 94032 at para. 49). The onus is on the applicant to prove that possibility.
64The applicant submits that she meets the criteria for Chronic Pain Syndrome as per the American Medical Association (“AMA”) Guides. She argues that she is excessively dependent on her family members, unable to pursue personal, family, and recreational needs, and has insomnia and feels stressed. She also relies on the information contained within Dr. Karmy’s treatment plan.
65Although it did not comment on this treatment plan in particular, the respondent submits generally that the applicant has not shown evidence of a chronic pain syndrome diagnosis, or demonstrated significant functional interference with her daily activities.
66I am not bound by the AMA Guides, but find the criteria helpful in this analysis, which are as follows:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contacts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
67After the applicant visited Dr. Milad on October 13, 2020, she did not visit him again for accident-related difficulties. After that date, there are only three records from Dr. Milad before me – two were for a cold, and one was for abdominal pain after eating at a restaurant. After October 13, 2020, there is no indication in the evidence before me that she was prescribed further pain medication. While the applicant did not rely excessively on Dr. Milad, she still continued to attend weekly physical therapy despite the respondent’s refusal to pay for it. Although this is not determinative of the issue, I find the fact that the applicant was paying out of pocket for therapy to be evidence that she was relying on health practitioners, and still suffering from pain and impairments past the date that her injuries were supposed to have healed.
68Dr. Alikhan opined that his examination of the applicant did not reveal anything to support a diagnosis of chronic myofascial pain or complex regional pain syndrome. Although Dr. Alikhan noted that the applicant described possible fear-avoidant behaviour and functional limitations, he also observed a number of non-organic findings and inconsistencies during his examination, which led him to believe that a bona fide diagnosis of chronic pain syndrome could not be supported.
69While I recognize the concerns raised by Dr. Alikhan, I find that there is other information before me that the applicant continued to experience pain and functional limitations after her expected period of recovery.
70Mr. Hirano’s s. 44 report of February 17, 2021, indicated that the applicant relied on her family and friends to help her maintain her home, shop, do laundry, and cook heavier meals. Her daughter helped wash her hair because of her right arm symptoms. In addition, her right-handed grip and pinch strengths were found to be below average, despite putting forth a competitive effort. I note that Dr. Alikhan attributed her right grip strength difficulties to a sub-maximal effort, but Mr. Hirano came to the opposite conclusion.
71The applicant reported similar functional limitations to the other assessors. She also described to Dr. Mandel that she was frustrated by her limitations. She reported to all of the assessors that her sleep was diminished due to pain. Further, the applicant has developed psychological difficulties as a result of the accident.
72I find that at the time this treatment plan was submitted, there was a reasonable possibility that the applicant may have been suffering from chronic pain syndrome, and therefore an assessment to explore that possibility and make treatment recommendations was reasonable and necessary.
(f) $2,460.00 for an orthopaedic assessment, submitted by 101 Assessments on March 15, 2021
73I find that an orthopaedic assessment is not reasonable and necessary.
74This treatment plan was submitted by Dr. Tajedin Getahun, orthopaedic surgeon. The goals of the treatment plan were noted to be pain reduction, increased range of motion, increase in strength, and a return to activities of daily living.
75The respondent submits that there is no indication anywhere in the records that the applicant suffered an orthopaedic injury as a result of the accident. It points out that her family physician has never referred her to an orthopaedic surgeon for consultation. Further, the applicant underwent multiple x-rays, none of which indicated an orthopaedic injury.
76In arguing in support of this assessment, the applicant referred to Dr. Getahun’s treatment plan.
77I do not necessarily agree with the respondent’s assertion that none of the imaging showed an orthopaedic injury. An x-ray on March 11, 2020, to the applicant’s right shoulder showed calcific tendinitis in the right rotator cuff, and ultrasounds showed small partial thickness tears in both shoulders. However, despite being aware of this, Dr. Milad never made any referrals to an orthopaedic surgeon.
78Further, although the applicant’s pain complaints warrant further exploration, no explanation has been provided as to why an orthopaedic assessment, in particular, is required. There are no other recommendations in the records or reports before me for an assessment with an orthopaedic surgeon. In addition, the applicant has not provided any information as to what Dr. Getahun’s assessment would be able to determine that Dr. Karmy’s cannot.
79For those reasons, I find that the applicant has not met her burden in proving that the orthopaedic assessment is reasonable and necessary.
(g) $2,460.00 for a neurological assessment, submitted by 101 Assessments on March 15, 2021
80I find that the proposed neurological assessment is not reasonable and necessary.
81The treatment plan for this assessment was submitted by Dr. Nikols, chiropractor. The goals of the treatment plan were noted to be pain reduction and return to activities of normal living. The identified “barriers to recovery” included pre-existing impairments, post-concussion symptoms, psychological and sleep impairments, and the severity of the accident/traumatic symptoms.
82The applicant refers to the treatment plan itself in arguing that she is entitled to this assessment.
83The respondent submits that there is no indication anywhere in the records that the applicant suffered a neurological injury as a result of the accident. Dr. Milad never referred her for a neurological consultation, and his note of March 7, 2020 indicated that her neurological examination was “normal”.
84The applicant reported to various assessors that she struck her head on the steering wheel in the accident. It is not clear whether she lost consciousness after the accident; she reported to Dr. Vintu that she did, but reported to Dr. Mandel that she did not. However, aside from headaches, she did not report any neurological symptoms to her family physician.
85The applicant complained to Dr. Milad of headaches prior to the accident, as well as after the accident due to colds or sinus infections. In fact, on March 7, 2020, the first date the applicant advised Dr. Milad of the accident, he wrote: “feeling better, less headache”. This was a few days after the applicant reported a headache as a result of sinusitis. I find that the applicant has experienced headaches for reasons other than the accident, and without further information, I cannot accept that her post-accident headaches were caused by a neurological injury.
86The first mention of a concussion throughout the entirety of the evidence before me was within this treatment plan. The treatment plan itself, without corroborating evidence, is not sufficient to prove entitlement to this assessment. In fact, s. 44 neuropsychologist, Dr. Cheryl Bradbury, stated after her assessment on July 26, 2021, that there was “no conclusive evidence to support any postulation of an accident-related concussion.”
87I find that the applicant has not met her burden in proving that this assessment is reasonable and necessary.
(h) $2,460.00 for a neuropsychological assessment, submitted by 101 Assessments on April 6, 2021
88I find that the proposed neuropsychological assessment is not reasonable and necessary.
89This treatment plan was submitted by Dr. Ilya Gladshteyn, psychologist. The goal of the treatment plan was listed as “Validated Neuropsychological Evaluation w/Total Brain Injury Impairment Score & Error Rate”. Dr. Gladshteyn listed the applicant’s injuries as postconcussional syndrome, mild cognitive disorder, and other and unspecified injuries of the head.
90The applicant relies on Dr. Gladshteyn’s diagnoses in support of her entitlement to this treatment plan.
91The respondent submits that the medical records are not indicative of a head injury or concussion. It relies on Dr. Bradbury’s report which did not identify any neuropsychological impairment. I note that the applicant does not comment on Dr. Bradbury’s report anywhere in her submissions.
92I do not know where Dr. Gladshteyn obtained the diagnoses indicated in his treatment plan. It does not appear that he assessed the applicant, so presumably this information would have come from the medical records available to him. Nowhere in the medical records are those diagnoses provided. I accordingly give his treatment plan very little weight.
93I agree with the respondent that there is no evidence that the applicant sustained a concussion in the accident. Although the applicant described experiencing cognitive difficulties to Dr. Vintu (poor concentration and short-term memory), she advised Dr. Bradbury in July 2021 that she was not experiencing any notable cognitive concerns. There are no cognitive issues noted within the records of Dr. Milad. The applicant’s reported cognitive difficulties were never linked to a concussion or head injury, and it appears that they were no longer present shortly after this treatment plan was submitted.
94For those reasons, I find that the applicant has not proven on a balance of probabilities that a neuropsychological assessment is reasonable and necessary.
Interest
95Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on any overdue benefits.
Award
96The 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. I find the applicant has failed to show that she is entitled to an award.
97The applicant argues that the respondent unreasonably withheld payment of the benefits without giving due consideration to the entire medical records before them, including the records of the applicant’s family physician. I have not been provided with any evidence that the respondent did not consider the entirety of the medical records, or what specifically it ignored. From what I can tell from the reports, the respondent provided the clinical notes and records of Dr. Milad and 101 Physio to its s. 44 assessors.
98The threshold for an award is high. The respondent’s denials do not alone suggest that the respondent unreasonably withheld or delayed the benefits. The applicant has not persuaded me that the respondent was inflexible, immoderate or stubborn in withholding the benefit. As such, an award is not payable.
ORDER
99The applicant has demonstrated on a balance of probabilities that her psychological symptoms and impairments justify treatment beyond the monetary limits of the MIG.
100The applicant is not entitled to a non-earner benefit from March 14, 2021 to March 3, 2022.
101The applicant is entitled to the treatment plan for $3,419.90 submitted by 101 Physiotherapy on March 10, 2020.
102The applicant is entitled to the treatment plan for $212.81, ($1,299.21 less $1,086.40 approved) submitted by 101 Physiotherapy on June 11, 2020.
103The applicant is entitled to the treatment plan for $2,378.72 submitted by 101 Physiotherapy on August 10, 2020.
104The applicant is entitled to the psychological assessment in the amount of $2,686.00 proposed by Dr. Peter Waxer on May 5, 2020.
105The applicant is entitled to the chronic pain assessment in the amount of $2,460.00 submitted by 101 Assessments on January 19, 2021.
106The applicant is not entitled to the orthopaedic assessment, neurological assessment, or neuropsychological assessment in dispute.
107The applicant is not entitled to an award under s. 10 of O. Reg. 664.
108The applicant is entitled to interest on any overdue payments pursuant to s. 51.
Released: August 28, 2024
Rachel Levitsky
Adjudicator